Davis v. Beason

77 Tex. 604 | Tex. | 1890

HOBBY, Judge.—

It will be seen from the foregoing statement that the salient questions involved and upon which the case turns are: Was there an actual sale and delivery of the goods by W. P. Higdon to appellee the Texas Trading Company at the time of the assignment made by him to appellant Davis of the same property? If not, the judgment is erroneous. But if this be affirmati vely determined, then it becomes necessary to ascertain whether this was a fraudulent sale of the property. If so, the judgment would also be erroneous and should be reversed. If, however, in addition to an actual sale it is not shown to be in fraud of the rights of creditors of Higdon, the judgment 'is correct and it should be affirmed.

The only thing which it can be claimed with any degree of plausibility was agreed between the parties to be done and which was not done in order to complete the sale was the mathematical calculation necessary to ascertain the value or amount of the goods shown by the inventory. The price of each article had been arrived at and the inventory was taken by the buyer to his room at the hotel to be added up.

There had been the fullest exercise of ownership over the goods by appellee during the day, some of them having been sold by him to former customers of Higdon. The payment of the rent for the store in which they were had been assumed by appellee; and that the key was left with the seller was explained by the fact that he was the clerk of Du Bose, who carried on a drug store in the same building, and it might have become necessary for him to have access to these drugs and medicines at night.

The general rule is that a sale is not completed while anything remains to be done to determine its quantity if the price depends on this, unless this is to be done by the buyer alone. 1 Pars, on Con., p. 527. But if the thing to be done is trifling, or but a mathematical computation, the rule does not apply. So where trees had been sold at a price agreed on per cubic foot, and the trees had been marked and the cubical contents of each tree had been ascertained, it was held that the property passed to the purchaser, although the sum total of the cubical contents had not been ascertained. 1 Pars, on Con., p. 527 and note; 3 Benj. on Sales, sec. 379. Hnder this rule we do not think that the mere fact of appellee taking the inventory with him to add up and ascertain the sum total of the goods sold would bring this case within the class of cases where sales are held to be uncompleted by reason of something remaining to be done which was agreed upon between the parties to perfect the sale and pass the title.

The principal ground relied on as establishing a fraudulent conveyance of the property was that there was an excess in the value of the goods transferred above the amount of the debt due by the seller to the purchaser which was sufficient to invalidate the sale. The amount of the debt was $534. There was evidence showing the value of the goods to be $564. The stock of cattle was valued at $85. The excess shown by these figures reaches the sum of about $115. We would not be prepared to hold that this circumstance alone, under the facts of this case, would authorize the conclusion that the sale, which in all other respects appears to be fair, was fraudulent.

It is to be noticed, however, in this connection that the three or four head of stock referred to were at the time in the possession of appellant's son, who claimed that §56 was due him for their pasturage, and three-fourths of this property was left with him in payment of that amount. This reduces the actual excess in the value of the goods conveyed above the debt which was the consideration to the sum of $59. The excess was not in fact paid to Higdon, and there is no evidence tending to show that this excess was offered as an inducement to him to make the conveyance for the purpose of placing his property beyond the reach of his creditors. A larger sum in excess than this paid was held not to be sufficient to invaldiate a similar transfer of goods. Harness Co. v. Schoelkopf, 71 Texas, 423.

These being the decisive questions in the case, we have not thought it necessary to discuss the other assignments.

We think the judgment should be affirmed.

Affirmed.

Adopted June 10,1890.