| La. | Jan 15, 1866
The plaintiff claims of the defendants, in solido, the sum of $306, the value of three cows and. one-calf, purchased by said Caze, at the auction sale of plaintiff’s dairy establishment, one of said cows having been sold subsequently by said Caze to P„ Canter. The petition alleges, in substance, that said Dennis Caze did', illegally and without authority, on the. 25th August, 1862, take from the premises of petitioner and carry away, three cows, belonging to him, and, brought one of said cows, of the value of $184, to the house of Peter Canter, and the other two cows were
Caze answered by a general denial. He further answered that he had purchased the cows in question, on the 25th August, 1862, at public auction, for $306, payable according to the terms announced, in six months ; and that the said cows were delivered to him by plaintiff.
P. Canter answered by a general denial; and further, that, in his dealings with said Caze, he acted fairly; and that he purchased a cow from him on the 9th October, 1862, for a valuable consideration.
The District Court gave judgment against D. Oaze for $306, with legal interest, and against the defendant Canter for the restitution of the cow purchased by him from said Caze, and, in case of his failure to restore the same, to pay $159, with interest.
P. Canter alone took this appeal.
The testimony shows the following facts:
On or about the 25th August, 1862, plaintiff caused the cows composing his dairy to be sold at auction, by Guinault, auctioneer.
The conditions of the sale were, that the purchasers should give their notes at six months, endorsed to the satisfaction of the vendor, previous to the delivery of the cows adjudicated to each purchaser. The defendant, Caze, purchased three cows, one of them having a calf. Two or three days after the crying at auction, and whilst the plaintiff was absent from the place where the sale was made, Caze, without having complied with the terms- of the adjudication, sent and had the three cows, one with a calf, adjudicated to him, taken away. Some time after getting possession of the cows, he placed the one which had the calf on the premises of the defendant, Canter, having sold the calf. The cow remained there some time, when he sold her to Canter, on the 8th October, 1862, for $100. The price for which the cow and calf were adjudicated to Caze was $184; the calf was worth about $25.
According to this evidence, the case turns entirely on a question of delivery and possession.
The tradition or delivery is the transferring of the thing sold into the power and possession of the buyer. C. C. Art. 2452; 13 L. 235; 12 B. 51. Delivery of movable effects may take place in three different ways: by real tradition; by delivery of the keys of the building in which they are kept; or even by the bare consent of the parties, if the things cannot be transported at the time of sale. C. C. Art. 2453. The seller is not bound to make a delivery of the thing, if the buyer does not pay the price, and the seller has not granted him any term for the payment. C. C. Art. 2463. It is true, in this case, that the buyer had a term of six months to pay; and it is contended upon this Article of the Code, and Troplong and Pothier are quoted in support of the argument, that the sale was complete, and the seller bound to deliver the objects adjudicated; but this credit of six months was with a condition precedent. ‘ ‘ Thai the purchasei-s should give
The cows were never delivered to Dennis Caze, who was not entitled to a delivery; he obtained possession of them by fraud, without having complied with the conditions of the adjudication, by giving his note satisfactorily to the plaintiff. The sale was not complete, and the cows were yet the property of plaintiff; and the defendant, D. Caze, having no ownership in the cows, could transfer none to his co-defendant, Canter.
We are of opinion that the judgment, of the District Court is correct.
It is therefore ordered, adjudged and decreed, that the judgment appealed from be affirmed, with costs.