75 So. 630 | Ala. Ct. App. | 1917
"In order to pass the title to goods as against the seller, or those claiming under him, there must be a valid existing contract of sale. Under a completed contract of sale the property in the goods passes at once from the seller to the buyer at the place where the contract becomes completed." 35 Cyc. 274. But if anything remains to be done by either party as a condition precedent, the contract remains executory, and the title does not pass. 4 Mayf. Dig. 745, § 50. If, however, the condition is waived, as it may be, by a timely failure to demand its performance, the title will pass, notwithstanding the original condition. 5 Mayf. Dig. 854, § 3.
The contract of sale in this case was made through correspondence and the original order, the letter of July 6, 1911, signed by the defendant, the letter of July 18, 1911, signed by the plaintiff, together with defendant's testimony to the effect that he was to sign a contract, which he never signed, may be said to be the contract of sale as shown by this record. Accordingly, then, by the defendant's own testimony, there was a condition in the contract which he never complied with.
As to whether the contract to be signed contained a clause retaining the title in the seller does not concern this case, and therefore the contract remained executory, unless the plaintiff, by its actions and conduct, waived that condition, and under the facts *84 in this case that question was one of fact for the jury.
The correspondence between the parties concerning the entire transaction, when properly identified, was relevant evidence, either for the plaintiff or defendant, and when so identified, should be admitted.
It is unnecessary to notice the other assignments of error. For the error noted, the judgment is reversed, and the cause remanded.
Reversed and remanded.
