48 S.E. 733 | N.C. | 1904
There was a clause in the policy of insurance by which a forfeiture was worked in case there should be any change, other than by the death of the insured, in the interest, title or possession of the subject of insurance (except change of occupants without increase of hazard), whether by legal process or by judgment or by voluntary act of the insured. The plaintiff in his notice of loss to the defendant company stated that he had made a verbal sale to L. D. McDonald but had not turned the property over to him. If that had been all of the evidence bearing on the question of a sale of the goods the judgment of his Honor dismissing the plaintiff's action would have been a proper one. But McDonald testified that although he had paid $300 on the purchase price (315) *230
of the goods, had agreed upon the price and was engaged in taking an inventory when the fire occurred, yet that there was an understanding between him and the plaintiff that he, McDonald, and the plaintiff when the inventory should be completed were to have a settlement and the plaintiff was to take a mortgage securing a note for the remainder of the stock. That evidence should have been submitted to the jury as to whether the title had been passed and the sale completed. His Honor treated the case as if nothing had been said between the plaintiff and McDonald about the manner of payment for the goods, but McDonald's evidence was to the effect that they were to be paid for in part by a mortgage upon his property. In a transaction of a purchase of goods where nothing is to be done, the price agreed upon and nothing is said about payment or delivery, the property passes at once and the future risk is put upon the purchaser, although he cannot take the goods away before he pays the price. That was the principle laid down in Jenkins v. Jarrett,
Error. *231
