106 Ga. 359 | Ga. | 1899
Peter Fleming was tried in the superior court of Hart county, under an indictment charging him with the unlawful sale of spirituous and intoxicating liquors, to wit, whisky. To this indictment he pleaded not guilty. The evidence in behalf of the State was substantially as follows: On the 11th of August, 1897, the accused was in Hart county detected in drawing whisky from a barrel into a. gallon pot. The barrel was located in a wagon. There were several bystanders present while the accused was engaged in this act of measuring whisky, and one of them had some change in his hand. A marshal of the town came up while the accused was engaged in this act of drawing whisky, when the bystander put his money in his pocket, and the accused ceased drawing the liquor, and emptied back into the barrel what he had drawn therefrom. The State’s witnesses saw no whisky sold, and saw no money pass to the accused. The testimony for the accused tended to establish the fact that neither the wagon nor the whisky belonged to him, but to another party who was in the crowd around the wagon at the time the marshal came up; that the accused had nothing to do with the liquor, and had no authority from its owner to sell the same. The accused himself stated that he never undertook to sell any liquor; that he had no right to do so, and that he simply went down to the wagon to purchase some for himself. He was found guilty, and excepts to the judgment overruling his motion for a new trial.. One of the grounds in the motion for a new trial was alleged error in the following charge of the court: “ In this case I charge you that if you believe the- defendant, at the time or on or about the time alleged in this indictment, had liquor for sale, or whisky for sale, that he and anybody agreed upon a price to be paid for a certain quantity of that whisky and the price was agreed to by both parties to it and the parties consented thereto, and that the whisky which in this case was in a bulk condition, and it was necessary to complete the sale of the quantity sold to separate that quantity from the bulk, and the defendant was in the act of separating the quantity of whisky agreed to be sold for which a certain price was agreed to be paid, his intention and purpose at the time being to deliver that quantity of
As a general rule of law, delivery of goods is essential to the-perfection of a sale. Civil Code, § 3545. It is true that the-question of delivery is one largely of intention of the parties to the contract, and actual delivery may be dispensed with by agreement of the parties. A varietjr of instances might be cited which the law will construe into a constructive delivery of property, and a complete sale thereof might be had without any actual manual possession of the goods by the vendee; but there ■ should be some evidence showing such a constructive delivery. The one thing perhaps essential, in all cases to á complete sale-of personalty is that the goods must by the vendor be put in a deliverable condition, especially in the absence of any agreement to the contrary. Where the article, for instance as in this. case, is in bulk, and particularly where it is liquid stored in a vessel containing a larger quantity than that bargained for, it is absolutely necessary to separate the quantity purchased, from the bulk in order to make either a constructive or actual delivery of what was sold. Before this separation is complete, there can be no complete sale. Bishop on Contracts, § 1309. Another element essential to a complete sale of personalty is a relinquishment by the vendor to the vendee of dominion and control of the property sold. The vendor must do all the contract requires of him touching a delivery of the goods, before - the sale thereof is complete. Unquestionably in this case no title to the whisky, which the accused was charged with hav--
Judgment reversed.