265 F. 9 | 8th Cir. | 1920
Both P. H. Adams & Co. (called Adams), a co-partnership of Shawnee, Oklahoma, and King, Collie & Co. (called
King’s bookkeeper, on entering the transaction, discovered the error in weight and entered a credit of $1,638.25 to Adams, being the amount for the 10,000 lbs. at the agi'eed purchase price. The error was first called to King’s personal attention some two months later. The matter rested for fourteen months, when Adams, on having his books audited, was first advised of the error. He at once went to Dallas, taking with him a duplicate of - the compress weights on which a balance due of $1,638.25 for the 10,000 lbs. had been figured, exhibited the sheet to King, and demanded payment of King of that ’amount. In the conversation King told Adams he knew all about the error of 10,000 lbs., and had withheld the $1,638.25 for adjustment in settlement of a judgment he had obtained against Adams then pending on appeal in the Oklahoma Supreme Court, and that he would not pay the $1,638.25 then unless the judgment was deducted. Adams declined to make the deduction, returned to Oklahoma and brought this action against King. He charged fraud and deception in the purchase, and preconceived design to cheat him out of the 10,000 lbs., cast his declaration as trover for conversion, and asked as damages the highest market price under a local statute which reads:
“The detriment caused by the wrongful conversion of personal property is presumed to be: * * * Second. Where the action has been prosecuted with reasonable diligence, the highest market value of the property at any time between the conversion and the verdict.”
The answer was a general denial and tender of $1,638.25 as balance ■of purchase price. The action cannot be sustained unless title to- the 10,000 lbs., was in Adams at the time he sued.
The court found there was no fraud, with which we agree; but .further found that the 10,000 lbs. were not obtained through con
"The primary factor in the determination of the transfer of title is in the intention of the partios. This intention may be expressed or it may be implied. from the surrounding circumstances and the condition of the goods.”
Furthermore, prepayment may be waived, and unconditional delivery is strong evidence of waiver and release of the seller’s right to claim any interest in or return of the goods. Tiedeman says, at Sec. 85:
“Where tho sale is a cash transaction, the parties are presumed to require prepayment of the price before there is to be any transfer of title or possession. If the goods are delivered to the vendee, in the absence of! an express agreement to the contrary, the prepayment of price is presumed to have been waived, and the vendee acquires title on delivery.”
Williston on Sales, Sec. 346, says:
“A delivery to tho buyer with authority to use the goods immediately .should be conclusive evidence of transfer of the property, in the absence of pretty clear evidence showing an intention to reserve the title.”
See also 1 Benjamin on Sales, Sec. 335 et seq.; 35 Cyc. 327.
Reversed.