126 Ind. 42 | Ind. | 1890
— The appellee obtained a verdict and judgment awarding him possession of the personal property in controversy. His claim is founded upon a purchase made by him at a public sale at'which the property of the appellant and his wife -was offered for sale pursuant to a notice containing this provision :
*43 “Terms of Sale: For all sums over five dollars a credit of eight months will be given, the purchaser executing a note, with approved surety, waiving valuation or appraisement laws, and bearing six per cent, interest.”
The appellee acted as clerk at the sale. He purchased sundry articles of ¡property, including that involved in this action, the aggregate value of which was more than seventy-five dollars. The sale took place on Saturday, the 16th day of April, 1887, and the appellee agreed to execute a note on the following Monday; on that day the appellant loaned the appellee some money, and a note was prepared for the amount of the loan and the value of the property bid off at the sale, but this transaction seems not to have been fully consummated. The appellee, in speaking of the cattle in controversy, said in his testimony, that he bid them off at the sale for $54.25 ; that he made a tender in money of the amount of his bid on the 4th day of May, and that he made no tender of a note on that day, but that he did tender a note for $25, and money to the amount of $55.25 on the Saturday after the sale. He also testified that he sold the cattle on the third day of May, and that Morgan told him at the time of refusing the tender that he considered the contract at an end. It further appears, from the evidence, that payment for other property than the cattle was accepted by the appellant. There is, in addition to the evidence referred to, uncontradicted evidence that the appellee refused to give a note with surety for the amount of his bid.
The question of law, which arises on the facts, is whether the appellee acquired full title to the personal property of which he seeks a recovery, for if he did not acquire such a title this action must fail. He could not, it is evident, acquire a complete title unless the contract of sale was so far executed on his part as to transfer ownership from the appellant. to him.
The terms stated in the notice of sale form part of the contract. One who purchases at a public sale made pursuant
The contract between the parties required the appellee to execute an interest-bearing note, with surety, payable eight months after date, and he could comply with his contract in no other manner than by executing such a note as his contract requires. He oould not elect to pay in money, for no-right of election was conferred upon him; it was his duty to do what he agreed to do when he purchased the property. This rule prevails even in cases where the property has been delivered to the buyer. Harris v. Smith, 3 S. & R. (Pa.) 20; Russell v. Minor, 22 Wend. 659; Henderson v. Lauck, 21 Pa. St. 359; Osborn v. Gantz, 60 N. Y. 540; Tyler v. Freeman, 3 Cush. 261; Whitney v. Eaton, 15 Gray, 225; Seed v. Lord, 66 Me. 580. In this instance, however, the seller retained possession and the buyer attempts to deprive him of it without complying with the contract of sale, for he neither executed, nor offered to execute, the note, for
The question before us is, whether title so fully passed as to entitle the appellee to take the property from the possession of the seller, and, hence, we are not dealing with the question as to when the property became that of the buyer to such an extent as to impose upon him the risk of loss in case of its destruction. There is a distinction between a complete investiture of title, such as will enable the buyer to maintain replevin, and such an investiture as will put upon him the hazard of loss in the event of the destruction of the property; but it is neither necessary nor proper for us to mark, or illustrate, the distinction; for here the question is, whether there was an absolute change of ownership. AVhether there was such a change depends upon the effect of the tender, since there is no pretence that there was performance. If the tender of money is sufficient, in a case where the contract provides for an interest-bearing note with surety, then there was a valid tender, and it might, with some plausibility, be argued that the appellee has a right to wrest the property from the possession of the appellant by legal process ; but if the tender of money in lieu of the promised notes is not sufficient, then it is too clear for argument that there was no complete change of ownership; and if there was no such
It is true that the appellee stated, in general terms, that he was the owner of the cattle, but a general statement of such a character can not avail against evidence of specific facts. Teter v. Teter, 101 Ind. 129 (137) (51 Am. R. 472). Such a statement is but the conclusion of a witness wherein are blended matters of law and of fact, and it must give way to the substantive facts which specifically appear.
Judgment reversed.