78 So. 321 | Ala. Ct. App. | 1918
Where there is a sale of goods to be paid for in cash on delivery, payment and delivery are concurrent acts, and payment is a condition precedent to passing title to the vendee. And if the goods are put into the possession of the buyer on the understanding or agreement that he will make immediate payment, and he fails or refuses to do so, the title does not pass, and the seller may reclaim the goods. Shines v. Steiner,
We approve the following utterances taken from the dissenting opinion in Addington v. State, ante, p. 23, 74 So. 859:
"In order to constitute the offense denounced by our statute, there must be a false statement relating to some existing or past fact, calculated to deceive, or the use of a false symbol or token calculated to deceive, and which misled and caused the party defrauded to part with a thing of value. Code 1907, §§ 6920, 6921; Wilkerson v. State,
"The cases noted above cited in 19 Cyc. 402, to sustain the proposition, 'A false pretense or representation may be made by act as well as by word'; but an examination of these authorities demonstrate that this is not a clear statement of the rule, and it is only when some symbol or token is used in connection with misleading conduct, such as 'passing of a worthless check or draft, or a check which accused has no reason to suppose will be honored' * * * that a false statement in words is not essential. In Glackan v. Commonwealth, 3 Metc. (Ky.) 232, under a statute substantially the same as ours, it was held, as our Supreme Court has held, that: 'It is essential to a conviction for obtaining money or property under false pretenses to allege and prove that the pretense whereby the money or property was obtained was the statement of some pretended past occurrence or existing fact, made for the purpose of inducing the party injured to part with his property.' " See Woodbury v. State,
The giving of the check, if given without an explanation to the contrary, was in and of itself a representation, symbol, or token that the defendant had money on deposit in the bank on which the check was drawn, and if this check was given with the intent to deceive the seller of the goods in this case, and he was thereby induced to part with the title to his property, and the symbol or token was false, and the seller was thereby deceived, the defendant was guilty. The jury by its verdict so determined, as it had the right to do, and we find no reason in the record for disturbing the judgment of conviction.
Affirmed.