64 Ala. 254 | Ala. | 1879
We are not of the opinion this case bears such analogy to Sumner v. Woods (52 Ala. 94), and Dudley v. Abner, (Ib. 572), as to be controlled by their authority. In each of those cases, the transaction was esteemed, in effect, a conditional sale. The vendee was clothed with a possession, separate from, and independent of the vendor ; not opening up inquiry, or calculated to excite it, as to his title. There was a sale, for a stipulated price, which the vendee was bound to pay. A condition was annexed, that the vendor, if the price was not paid, when it became due and payable, should have the right to resume possession of the property; and that until the price was paid, the title should remain in him. As to bona fide purchasers from the vendee, having no notice of the condition annexed, it was held the sale must be regarded as absolute, though, as between the parties, it would be conditional. The transaction in-the present case, as the evidence introduced by the plaintiff tended to show (and it was not contradicted), was of an entirely different character. A landlord purchased two mules, and turned them over to a tenant, to cultivate crops on the rented premises ; promising the tenant that he would sell the mules to him, when he was able to purchase them. No price was agreed upon ; the tenant testifying, that he was willing to trust the landlord as to the price, if he was able to purchase ; and the landlord testifying, that he expected, or intended, to charge only the price he had paid for the mules. The transaction was a mere bailment, with a privilege of purchasing, which the tenant could exercise or not at his option. Chamberlain v. Smith, 44 Penn. St. 431. And bailments are expressly excepted by C. 3. Tilghman from the operation of the principles laid dowm in Martin v. Mathiatt (14 Serg. & Rawle, 214), the leading authority relied upon to support the conclusions reached in Sumner v. Woods, and Dudley v. Abner. A sale is defined as a transfer of the absolute or general property in a thing, for a price in money, paid or promised; or, as sometimes defined, it is an agreement of both parties, that the property shall pass from one to the other, for a consideration given, or promised to be given. The price to be paid, the consideration moviug the vendor, and a transfer of property, are of its material constituents. The landlord and tenant, in this case, contemplated a sale in the future; or the transaction, it may be, amounted to an offer to sell, time being given for acceptance, when, if there was acceptance, the price would be paid. There was no sale, nor was there a
The judgment is affirmed.