86 Kan. 686 | Kan. | 1912
The opinion of the court was delivered by
The appellant company through a broker in Kansas City ordered a carload, consisting of 850 cases, of standard tomatoes from the appellees, a co-partnership doing business at Marshfield, Mo. The shipment was made and reached Topeka in bad condition ; a large percentage of the cans were rusty, swelled or leaking and therefore unmerchantable. The appel
This action was brought by the appellees to recover,, on .the alleged oral agreement, the original contract price of the goods found to be merchantable. The appellant denies liability. On the trial to the court without a jury Greer and McKnight testified to the conversation had between them and Davis before they left Topeka, which, if true as related by them, would constitute a sale of the merchantable goods to the appellant. Mr. Davis, on’the other hand, testified concerning the same conversation, and according to his version thereof no sale resulted, but the appellant was to store the-
Delivery is essential to complete a sale of personal property, and until completed by a delivery of the goods the conversation could at most have amounted only to a contract of sale. Until it was ascertained what was embraced in the contract there could be no completed sale even if it be said that the entire carload was delivered to the appellant to determine what portion thereof it would buy. Up to the time of the completion of the contract to sell into a purchase and sale, the transaction was a continuing one, and what was said and done by a party thereto during such time was a part of the res gestee. In support of the claim that the goods were received only as a bailment, the appellant produced other witnesses and propounded questions to them to elicit evidence of the directions claimed to have been given by Mr. Davis to the men handling the goods and of statements he made to others soon after Greer and McKnight left Topeka; also, that he had directed that none of the goods be sold, and that they were marked so as to distinguish them from other goods in the warehouse. It is claimed that this is a part of the res gestae, explaining the possession of the appellant and corroborative of the testimony of Mr. Davis. Objections were made to all questions of this class, the objections were sustained, .and the evidence excluded. This presents the only question as to whether there was error in this case. Another question will be discussed, as to whether the ruling, if erroneous, has been properly preserved for the consideration of this court. The evidence was admissible as a part of the res gestae and as characterizing the possession of the appellant which it then had. (The State v. Gurnee, 14 Kan. 111; Stone v. Bird, 16 Kan. 488; Reiley v. Haynes, 38 Kan. 259, 16 Pac. 440; Hubbard v. Cheney, 76 Kan. 222, 91 Pac. 793; Cooper v. Bower, 78 Kan. 156, 96 Pac. 59.)
It is, however, suggested that if there was error in the
The omission is fatal to the appellant and the judgment is affirmed.