74 S.W. 588 | Tex. App. | 1903
Suit by the Midland National Bank of Washington, Ohio, against M.W. Strickland on a note for $468.95, dated May 1, 1899, due January 1, 1900, given by Strickland to the Wonder Manufacturing Company, and assigned by the payee to the plaintiff. Trial before the court without a jury, and judgment for the defendant.
The note was given for the purchase price of a lot of stoves which were sold by the said company to Strickland. At the time the contract of sale was entered into, the stoves were situated in a warehouse in Dallas. Some time thereafter the warehouse was burned. The stoves had not been removed, and were destroyed by fire. The question is, whether there had been such delivery of the stoves to the purchaser as would pass the title and risk. On this point the defendant testified as follows: "Some time in April or March, 1899, Mr. Chase, agent of the Wonder Manufacturing Company, came to me and said that he had a number of stoves in storage in Dallas which he desired to sell. I told him I had no use for stoves in the spring of the year, as I could not sell them, and had no place to store them. * * * Chase said he recognized the fact that it was not the right time of year to buy stoves, but *92 that he would make me a very low price on stoves and, moreover, he would allow them to remain where they were free of storage until I wanted them in the fall, or until I sent for them. I thereupon gave Chase an order for the stoves, which he evidently sent to the Wonder Manufacturing Company, for I received from them a letter asking that I execute a note for the amount of the order. I executed that note and sent it to them. That is the note sued on in this case. The stoves were subject to my order at any time. I did not demand them, however, until after the fire."
Chase testified substantially as did defendant. He said: "I went to Mr. Strickland and made him a special price on stoves, and agreed to allow them to remain where they were until he had room for them, without charge for storage, if he would buy them, and they were subject to his order. After some hesitation he agreed to buy them. I took his order in the usual way and sent it to the Wonder Manufacturing Company.
In Cleveland v. Williams,
The authorities cited settle this case in favor of appellant. It was *93 part of the bargain that the stoves should remain in the warehouse of the seller, subject to the order of the buyer, and the agreement that they should so remain was part of the consideration which induced the buyer to purchase. The contract of sale, by its terms, dispensed with the necessity for a manual delivery, and the possession of the vendor must be held to have been the possession of the vendee. There is no suggestion in the record before us that anything remained to complete the sale. The buyer had executed his note for the purchase money, and his right to have the stoves turned over to him on demand is unquestioned. It follows that the title had passed to the buyer, and that when the goods were destroyed by fire, without the fault of the seller, the loss fell upon the buyer, and he can not escape liability for the price of the goods.
The judgment will be reversed, and as there is no controversy as to the facts, judgment will be here rendered in favor of appellant for the amount due upon the note in suit.
Reversed and rendered.