Pierson v. Hoag

47 Barb. 243 | N.Y. Sup. Ct. | 1866

By the Court, Johnson, J.

In a sale of chattels, when the purchase price is to be paid upon the delivery of the article to the purchaser, the title remains in the seller until delivery. (Kelley v. Upton, 6 DBuer, 336. Fleeman v. McKean, 25 Barb. 474. Whitcomb v. Hungerford, 42 id. 177.) This rule is so just and reasonable, that it scarcely needs to be fortified by the citation of authorities. And this is so where partial payments are made to bind the bargain, or otherwise, if no credit is contemplated after delivery. That was this case, and the court was unquestionably right in charging the jury that the sale was not completed until the 12th of September, when the purchase price was paid and the horse delivered. If there was a warranty on the part of the seller, of soundness, it was, of course, that the animal was then sound. There was no error in this part of the charge. Hor was there any error in that part of the charge in which the jury were instructed to take into consideration what took place at the defendant’s house on the night of the 12th of September, where the plaintiff was then staying over night.

[Monroe General Term, March 5, 1866.

This was before payment and delivery were consummated ; and upon the question as to what the contract really was, every thing that takes place between the parties upon the subject, before its final completion, was proper; especially when it was altogether verbal. Equally untenable is the exception to that part of the charge in respect to the testimony of the plaintiff’s disclaiming any warranty, when he took the horse. The question to the medical witness was clearly proper. He. had already stated that he had read various standard authors on the subject of diseases, and had given his own opinion, in respect to the character of the disease of which the animal died. Certainly it was proper, at that stage of the inquiry, to ask the witness for his best medical opinion, according to the best authority.

„ There is no error, either in the ruling upon the trial, or in the charge, and a new trial should be denied,

Welles, E. Darwin Smith and Johnson, Justices.]