71 Ala. 42 | Ala. | 1881
Where a vendor makes sale of personal property in the custody of a third person, who is his bailee, and gives a delivery order to the vendee, it has long been settled that this will not amount to a delivery so as to vest the title in the vendee, until the order is presented and such third person agrees to become the bailee of the purchaser, expressly or impliedly.—Benj. on Sales, § 175, § 680; Bentall v. Burn, 3 B. & C. 423; Barney v. Brown, 19 Amer. Dec. 720. It is true that where the custodian or bailee assents in acbocmce of the sale to become the bailee of the buyer, this assent might be irrevocable after the sale, and the title would pass. A refusal by the custodian afterwards to deliver would be, not a refusal to become bailee, but to do his duty as such under the previous agreement which constituted him bailee for the purchaser. Benj. on Sales, § 175. So where goods are merely on the premises of a third person, who is not a bailee for the owner, as in the case of one holding tortious possession, delivery may be effected by the vendor’s putting the goods at the disposal of the vendee, so as to be, actually or constructively, under the exclusive dominion of the latter.—Benj. on Sales, § 178.
Brooks in this case was clearly the bailee of the appellants, the machine sold by them to Meadows being in his possession.
And- so the delivery could have been waived by the purchaser, if he had voluntarily consented to let Brooks retain the machine until the next day, or for any definite space of time, as an act of free grace or favor from himself. But if Meadows acted under the moral coercion of necessity dictated by the situation, and merely allowed Brooks to continue in custody as the best arrangement he could make under the circumstances, Brooks would not thereby become his bailee, but continued his original custody as bailee of the vendors, Edwards, Iiudmon & Co.
In Magee v. Billingsley, 3 Ala. 679, the giving of an order for cotton stored in a warehouse and in a deliverable condition was held prima faeie to constitute a delivery. There the warehouseman, however, agreed to attorn to the vendee, and made a memorandum of the purchaser’s name on his books in the usual manner of such sales. Custom, too, would probably exert a controlling influence in the case of sales of cotton kept on deposit by warehousemen, especially in large cities, which would take such transactions out of the operation of the ordinary rule governing other classes of bailees and other kinds of property.
The charges of the court in relation to the delivery of the property in controversy were in accordance with these views, and there was no error in them.
The court erred, however, we think, in charging that the posting of one notice at the court-house door, and another at the post-office, in the city of Opelika, was not a strict compliance with the requirement of the mortgage, which was that advertisement of foreclosure should be made by posting written notices “in two public places in Lee county.’’ No two places in the entire county could probably have been selected which were more public, or where the attention of more persons would have been called to the intended sale. It would be unreasonable to suppose that separate municipalities were contemplated, or separate localities out of the same municipality.
^Reversed and remanded.