| Ala. | Dec 15, 1877
Things not in esse, actual or potential, can not be the subject of sale. They may be the subject of an agreement to sell. “Things not yet existing, which may be-sold, are those which are said to have a potential existence, that is, things which are the natural product or expected increase of something already belonging to the vendor.” The crop of hay to be grown on his field, the wool to be afterwards clipped from sheep owned at the time, have a potential existence, and may be sold. But a crop to be grown on lands, or wool to be clipped from sheep after-wards to be acquired, have not a potential existence, and can only be the subject of an agreement to sell.—Benjamin on Sales, 63. The title may pass by the one, it does not by the other.
A contract is only an agreement to sell, and does not become a sale, if any term in which the seller must co-operate, or which imposes a liability or duty on him, remains to
The written contracts with Hirschfelder and with Lobinsón, neither of them, vested title in the purchaser. They were but agreements to sell that which, at the time, had no potential existence ; and a term of the contract—actual delivery at Ferry Pass—remained to be performed by the seller. Detinue could not be maintained on either of these written contracts, without more. ■
But if the testimony be believed, each of these parties-made a subsequent, modified agreement, by which they agreed to receive, and did receive possession of the timber as-it lay in the woods. Parting with dominion to another is delivery of a chattel; and if Hammons agreed to sell pressently, and pointed out to the agent of the vendee the timbers-in their then state, with a view of surrendering the dominion, and such agent thereupon took control of them, this amounted to a completed sale, notwithstanding the price to be allowed may have been left dependent on some after event. The question is, did Hammons part with dominion over the timber ?
The bill of exceptions informs us that there was a conflict in the testimony, as to which delivery was first; that toHirschfelder, or that to Bobinson. This is the turning question in the cause, if sale and delivery-was made to each. Qui prior est in tempore, potior est in jure. In other words, if Hammons sold and delivered to one, he had nothing left to sell or deliver to the other. The testimony on these-questions was given orally to the jury. It was for them to determine what were the facts. They were the sole judges of the credibility and weight of the testimony. The court could not find or assume, as matter of law, that there had been a sale or delivery to either. Possibly the jury may have disbelieved that part of the testimony which tends to show a modification of the contracts. This was for them to decide under the solemnity of their oaths. Charge number 2, asked by the defendant, should have been given, because the court could not, as a matter of law, affirm the truth of' the oral testimony. That out of the way, the written contract did not justify a recovery. But if the jury believed
The charge No: 3, asked by defendant, should also have been given. It was for the jury to determine which contract was first consummated by delivery.
Reversed and remanded.