96 Ga. 81 | Ga. | 1895
On January 28th, 1890, the Rome Rolling-Mill Co. entered into a contract with Shepard & Co., in the form of a writing, signed by the rolling-mill company, which reads as follows:
“Rome, Ga., 28th January, 1890.
“We have this day sold to Messrs. Shepard & Co. of Boston, Mass., 60,000 bundles of cotton ties, to be 11 feet long, to have No. 2 or No. 4 arrow buckles (new), bundles to consist of 30 hoops and 30 buckles, well bundled and coated, and to weigh not less than an average of 50 pounds to the bundle. Messrs. Shepard & Co. to pay us cash for the ties as fast as we make and store them for them in our warehouse. We to draw on them at sight, with our warehouse receipt attached to draft. The rate of delivery and price to be as follows: 5,555 bundles per month from January, 1890, to September, inclusive. The January quota to be delivered in February and March. Price to be, for January, February and March, $1.05 per bundle for 1,000 bundles, $1.10 per bundle for balance. For April, May and June, $1.07J per bundle for 10,000 bundles, and $1.121 for balance. For July, August and September, $1.10 per bundle for 10,000 bundles, and $1.15 per bundle for balance. All prices f. o. b. cars here. We to store the ties in our warehouse, to keep them insured and to load them into cars for shipment at any time this season as Messrs. Shepard & Co. shall instruct us, and to make no charge for same.”
For several months and until placed in the hands of a receiver, the rolling-mill company furnished ties in pursuance of this contract, the ties, as soon as finished, be
¥e think the court erred in so holding. The essentials of a sale are an identification of the thing sold, an agreement as to the price to be paid, and consent of the parties. (Code, §2629.) Generally the delivery of goods is essential to the perfection of a sale, but the intention of the parties to the contract may dispense therewith. Delivery need not be actual, but may be constructive. (Id. §2644.) In determining whether a sale of the ties in question had been effected, so as to pass title to Shepard & Co., the main thing to be considered is the intention of the parties. The issuing or transferring of a warehouse receipt is a common and well recognized mode of effecting delivery, and in this case was undoubtedly intended to operate as a delivery. Having received the price of the goods, the rolling-mill company would be estopped from denying the fact of delivery. To allow the company to deny this fact would be to permit it to take advantage of its own wrong; and it could not be heard to say that the delivery was incomplete because the goods were not entirely finished or had not been removed from the mill to the warehouse. Nor do we think the creditors of the vendor stood upon a different footing in this respect from the vendor itself. It was not contended, nor is there any evidence indicating, that there was bad faith or an intent to defraud creditors on the part of the rolling-mill company and Shepard & Co. It is certain that if Shepard & Co. paid a draft for the value of the ties, knowing that they were partially unfinished and not in fact in the warehouse, the delivery
Judgment reversed.