44 Tex. 633 | Tex. | 1876
Law writers and courts have given some general rules governing questions like those involved in this case, but a careful examination will show that each case has been controlled by its own attendant circum
Some writers make the point at which the seller’s duty in the premises ceases, the initial point of a change of property.
In the case of Gerard v. Prouty, 34 Barb., 456, which was a sale of cigars at auction, the court say: “At the time of damage the cigars had not been weighed, there being loose ones not counted.”
“ Both of these acts, as well as delivery, were necessary to pass the title.”
Was there a sale of the property to Brooks, or was it a negotiation about a sale?
A sale imports and necessarily carries with it a change of ownership. (Pars. Merc. Law, 46.)
If there be a bargain for the sale of specific goods, and there remains something material to be done by the seller, and a loss occurs, it falls on the seller. (Pars., 47.)
Questions of this kind have given rise to much litigation and caused some perplexity. Whatever rule be adopted, it may be sometimes difficult to apply it, but we cannot doubt that the true principle is this: Every sale transfers the property, and that is not a sale which does not transfer the property in the thing sold; but this property cannot pass, and therefore the thing is not sold unless, first, it is completed and wholly finished, so as to be in fact and in reality the thing purporting to be sold; and in the second place, it must be so distinguished and discriminated from all other things that it is certain, or can be made certain, wh'at is the specific thing the property in which is changed by the sale. If the transaction be deficient in either of these points, it is not a sale, although it may be a valid contract for a future sale of certain articles when they shall be completed, or when separated from others.
A contract for a sale of certain property when something remains to be done, or at the happening of some event, is
Let us apply the rules, as stated above, to the facts of this case. Whether Brooks remained and saw each article separated from the hulk of clothing, and boxed up and marked, ór whether he merely selected articles of which he was to have a quantity, and ordered so many, like those selected, to be boxed, marked, and sent by the Houston Direct Navigation Company, does not clearly appear. But suppose the former, did the property in the goods then pass to Brooks? It is in proof not questioned or contradicted that Half, Weiss & Co. were to send the goods to the common carrier and get his receipt therefor. Besides this express contract, it is in proof equally clear that it is a custom of trade in the city of Galveston, when a country dealer buys a bill of goods, for the seller to box and deliver to a common carrier for shipment to the buyer, and until that is done, and the carrier’s bill of lading taken for them, the seller has not performed his duty or parted with the property in the goods.
This custom would control and supply an omission in a
Suppose the goods in question, being hauled to the wharf by appellees’ dray, had never reached the wharf, and neither drayman or goods had ever been heard of again, what would have been the relative rights of the parties to the contract? Brooks would not, in that event, be considered or held to to the owner of the goods, and the loss undoubtedly would have fallen on appellees. But in the event supposed, would Brooks not have some remedy for a non-delivery and failure on the part of appellees to comply with their contract? Certainly he would. If clothing advanced next day one hundred per cent, in the Galveston and Columbus markets, Half, Weiss & Co. would have been liable to Brooks for the amount of his damage. (Duncan v. McMahan, 18 Tex., 597.)
We therefore conclude that the dominion and control over the property by Half, Weiss & Co. had not ceased when it was levied upon, and that the right to, and in, this property had not vested in Brooks at the time of the levy.
If the drayman had reached the wharf, delivered the goods to the common carrier to whom Brooks had ordered them delivered, and the drayman had got his receipt therefor, the right of property would undoubtedly then have been in Brooks, and any seizure or loss thereafter would have been a matter for adjustment between the common carrier, or attaching creditor, and Brooks. The charge of the court was in conformity to the views here expressed. There was a fair trial, and we see no error in the judgment, and it is affirmed.
Affirmed.