Caruthers v. McGarvey

41 Cal. 15 | Cal. | 1871

By the Court, Rhodes, C. J.:

The defendant claims that the note in suit was paid, while in the hands of the payee, by the sale to him of corn, at the rate of one dollar and a half per cental, the quantity sold to be sufficient to amount to the sum of four hundred and five dollars—the balance due on the note. The payee of the note was notified that the corn was ready for him, but it was not weighed, nor was the quantity to be delivered separated from the other corn in the field. It is elementary law that the property does not pass absolutely unless the sale be completed; and it is not completed, so long as anything remains to be done to the thing sold, to identify it or discriminate it from other things. (1 Pars. on Cont. 441.)

Judgment and order reversed, and cause remanded for a new trial.

Neither Mr. Justice Crockett nor Mr. Justice Sprague expressed an opinion.