186 Iowa 975 | Iowa | 1919
About April 11, 1917, the plaintiff called on the defendant to assess his property, and, in the course of their conversation, proposed to purchase his corn. After some parley, the price was fixed at $1.25 per bushel; plaintiff was to haul the corn in July; and it was to be weighed on Hanneman’s scales. Plaintiff handed defendant a check on the First National Bank of Missouri Valley, in words following:
“Missouri Valley, Iowa, April 11, 1917, No.--
“Pay to A. R. Mencliing, or order, $500.00
“Five Hundred no/100 Dollars,
“Part payment on corn at $1.25 per bushel to be weighed on Banneman’s scales in Magnolia to be hauled in July.
“Frank F. Latta.”
About 400 bushels of white corn were in a wire crib, Avithout cover, and about 1,000 btishels of yellow corn in a board crib, with the ordinary roof. The corn in I he Avire crib was to be first hauled.
The plaintiff testified that he had said to Mencliing, Avhen buying the corn, that he would take no rotten corn, or that he had the right to throw out the corn he considered not good. On the other hand, defendant testified that he
In First Nat. Bank v. Reno, 73 Iowa 145, the contract purported to be a present sale, and the court, in the course of the decision, said:
“The question whether the title to personal property which is the subject of a contract has passed to the vendee under the agreement is one of intent. If there has been an actual delivery, and nothing remains to be done to ascertain the price or quality of the article, the strong presumption is that the intention was to pass the title. On the other hand, if the delivery has not been made, and something yet remains to be done in order to ascertain its quality or price, such as inspecting or weighing it, the presumption is equally strong that it was the intention that the ownership should remain in the vendor. But in neither case is the presumption conclusive. It would be competent for the parties to contract, in the one case, that the title should remain in the vendor, notwithstanding the delivery, or, in the other, that it should pass to the vendee in advance of delivery.”
In Welch v. Spies, 103 Iowa 389, the sale in question was of not less than 1,600 nor more than 2,000 'bushels of corn. There were 1,600 bushels in one crib which had not been opened, and, though corn had been taken from another crib, 700 bushels remained in it. These cribs burned, after the contract was entered into, and the suit was for the purchase price of the corn. Under the evidence, some of the corn in the latter crib was held to have been reserved for the use of others, and the sale of the corn in the unopened crib was held to have been completed, the conclusion appearing to rest on the statement of the buyer to the seller, when paying him $50 on the purchase price, “The money is yours
This rule was stated in Courtright & Co. v. Leonard, 11 Iowa 32, and has been followed ever since, the court there saying that:
“Where some act remains to be done in relation to the articles which are the subject of the sale, as weighing or measuring, or, as in this case, that of separating and setting them apart from the bulk, so that they may be distinguished and identified, the performance of such act is a prerequisite, and until it is performed, the property does not pass to the vendee.”
Had the parties agreed that the corn should be taken from the wire crib as it came, — that is, regardless of quality, — and that, after removing all from that crib, the balance should be taken from the other crib, nothing would have been essential to be doné other than weighing the corn to ascertain the quantity, and the payment of the remainder of the purchase price; and there would have been some basis for saying that the facts brought the case within the holding of Rhynas v. Keck, supra. But the evidence indicates affirmatively that the corn sold was not identified, but was to be identified when hauled, by being selected by plain