62 Mo. 209 | Mo. | 1876
delivered the opinion of the court.
This was a suit for the value of thirty-four bales of cotton, which, it was alleged, w.ere sold by plaintiffs in 1862 to John B. Carson, now deceased. The plaintiffs’ testimony tended to prove that they sold to James O. Carson, acting for and on behalf of John B. Carson, one hundred and one bales of cotton, at a certain price per pound-; that in the afternoon of
Defendant introduced testimony of a contrary character, tending to show that there had been no delivery or acceptance of the last lot of cotton.
When the deposition of one of the plaintiffs’ witnesses was offered in evidence, detailing the terms of the sale and aqceptance of the cotton, it was objected to on the ground, that the defendant was dead, and before it was admissible against him, it would be necessary to show that the contract was made with some person still living. The objection was overruled and the deposition received. The trial w'as before the court sitting as a jury, and for the plaintiff a declaration was given, that if it was found from the evidence, that in October, 1862, there were lying on the levee in the city of St. Louis thirty-six bales of cotton at one place, identified'by specific marks, and being a separate lot of cotton in possession of the plaintiffs, and the plaintiffs sold the same to defendant for the price of 56 cents a pound, or any other price, and the defendant then and there bargained for the same at such price and no stipulation was then and there made by the parties, delaying the taking of possession of said cotton by defendant, and that after said sale the defendant by self or agent went and looked at said cotton, having previously received from the plaintiffs samples thereof, and after looking at said cotton,
For the defendant, the court declared the law : 1st. Unless it was satisfied by the evidence, that the contract in issue was originally made with James O. Carson, the testimony of the witness Ober, to anything said or done in the lifetime of John JB. Carson, was incompetent. 2d. Unless it was found from the evidence that there was a sale and delivery of the cotton in question by the plaintiffs to the defendant, the plaintiffs were not entitled to recover; that to constitute delivery in the case, it was incumbent on the plaintiffs to prove affirmatively that they delivered the cotton in controversy to the defendant, for the purpose of passing the title thereto to him, and that he received or accepted the same, with the view or for the purpose of making it his own. 3d. That in order to constitute a valid sale and delivery of goods, the vendor must have done everything which it was incumbent on him to do, he must have intended to part with the possession of them and have actually parted with the possession, and the vendee must have received the same with the intention and for the purpose of holding the same as owner. 4th. If it was found from the evidence that a sample of the cotton was shown by the plaintiff to the defendant, and that defendant bargained for the cotton if the same should be according to sample, such bargain vested no title to said cotton in the defendant until he had the opportunity to inspect said cotton and compare the same with the sample. 5th. Unless it was found from the evidence that there was a sale and delivery of the property in question by the plaintiff's to the defendant, the plaintiffs could not recover. Defendant asked eight additional declarations, which the court refused.
The instructions given, we think, fairly presented the law. The cotton was separate and distinct from all other lots, and was capable of being transferred without anything more being done. Where anything remains to be done between the seller and purchaser, before the goods are to be delivered, as separating the specific quantity sold from a larger mass, or identifying them when they are mixed with others, a present right of property does not attach in the purchaser. But when a mere operation of weight, measurement, counting, or the like, remains to be performed after the goods are actually delivered, and it is shown that it was the intention of the parties to complete the sale by delivery, such weighing, measuring or counting afterwards will not be regarded as a part of the contract of sale, but will be considered as referring to
A witness testified, for the defense, as to the custom of delivering cotton at that period; that when it was purchased by sample it was afterwards re-sampled; that the seller then had it weighed, and would take the certificates of weight to the collectors and pay the tax on the cotton, and get a permit to remove the same. The seller then furnished to the buyer the weigher’s certificates, tax receipts, and the permit, and these were considered a delivery of the cotton. There is no difficulty in arriving at the eoncl nsion that the court committed no error in refusing defendant’s instruction on this subject, In the first place, the practice of taxing cotton and issuing permits was so recent, that there had been no time for anything like a general usage or eustoiai to grow up.. Again, there was nothing to show that it was either certain, uniform or reasonable. But a custom, however well established, can never be permitted to prevail so as to make the rights and liabilities of parties other than they are at law. What constituted a delivery of the eotton was a question of law, and the law alone could ascertain the rights of the vendor and vendee, respectively. (Southern Freight and Cott. Pr. Co. vs. Stanard, 44 Mo., 71.)
The motion for a new trial on the ground of newly discovered evidence deserves no consideration. It seems that after the fire, when the contest sprang up in-reference to the question who owned the cotton, the portwardeu was permitted to sell what remained, and as the money would be coming to the plaintiffs in any event, they gave a receipt for it, in behalf of whom it might concern. There was an agreement between the respective counsel, that this money should be credited on the judgment, if it was in the plaintiffs’ favor. A writing to this effect was prepared by defendant’s attorney and handed to one of the attorneys representing the plaintiffs, but from .some cause or other was overlooked and not signed, or produced upon the trial. When this motion was made and -the matter was brought to the attention of the plaintiffs’ attorneys, they ascertained the amount received by the plaintiffs, and credited it upon the judgment as they had' agreed to do. So, the defendant has had the full benefit of everything he expected to prove by reason of the evidence sought for. There is, therefore, no ground for the motion whatever.
Judgment affirmed. Judges Napton and Sherwood concur. Judges Tories and Hough absent.