Sherry v. Picken

| Ind. | Jun 3, 1858

Perkins, J.

Suit by Picken against Sherry and others, for a quantity of corn, alleged to have been the property 0f former and wrongfully converted by the latter to their own use.

Answer, denying property in the plaintiff, and alleging property in the defendants. Issue by reply. 1

Trial by jury; judgment for the plaintiff.

Picken claimed title to the corn by virtue of a purchase from Sherry. Sherry, and the other defendants who claimed through him, denied that Picken so far complied with his contract of purchase as to vest the title to the corn in him. And this was the question in the cause.

Sherry raised the corn, and Picken averred that he purchased it of him while it was yet standing in the field, and paid a part of the purchase-money. Sherry denied that Picken complied with his contract of purchase, [averred] that the title to the corn never vested in him, and that he, Sherry, as he lawfully might, subsequently resold it to his co-defendants.

The jury found—

1. “ That on the 4th day of September, 1854, the defendant, Sherry, sold and delivered eighty-seven acres of corn, standing in the field, to the plaintiff, and that said corn thereby became the property of the plaintiff”

2. They found that the' defendant, Sherry, subsequently made a pretended sale, &c., to the other defendants, and that their possession of the corn was wrongful, &c.

3. They found the value, &c.

Growing crops, raised annually by labor,' are personal property, and may be sold by parol contract, earnest being paid where the price equals the amount for which the statute of frauds requires earnest. Weatherly v. Higgins, 6 Ind. R. 73.—Bricker v. Hughes, 4 id. 146. Where the sale' is complete, the title passes without the delivery of the property. Indiana Digest, tit. Sale, p. 724. But possession cannot be claimed by the purchaser till payment of the price, where payment and delivery are to be concurrent acts. The seller, in such case, has a lien for the unpaid purchase-money. But if the delivery is to precede, for a certain time, the payment of the money, then possession may be claimed without such payment, unless the purchaser be discovered to be insolvent. And if, in any case, possession be voluntarily delivered without the payment of the purchase-money, the lien for the latter is waived, unless secured by mortgage. See Bouv. L. Die., tit. Stoppage in Transitu.

S. A. Huff, Z. Baird, J. F. La Rue and W. F. Lane, for the appellants ⁽²⁾. R. C. Gregory, H. W. Chase and J. A. Wilstach, for the appellee ⁽³⁾.

In this case a receipt, as follows, was given in evidence:

“ September 4th, 1854. This is to certify that I have sold to Hunter Pichen one lot of 87 acres of corn, and have received on the same 325 dollars. Jacob Sherry.”

The Court instructed the jury that this written instrument merged all contracts relative to the corn, and that parol evidence of a contract of sale could not be given.

A receipt is not usually a contract. It may be so drawn as to constitute one, but the above is not. It does not purport to contain the contract. It merely acknowledges that one has been made, and the amount of money named paid on it. It did not preclude proof of the terms of that contract. Pribble v. Kent et al., at this term ⁽¹⁾.

The Court instructed the jury that this suit could be maintained against the defendants without a demand having been first made of the corn.

This instruction was wrong. The evidence shows that all of the defendants except Sherry were bona fide holders of the corn, through a purchase, from Sherry. The law is well settled that in such case a suit cannot be maintained against such holders, at least till after demand. Till that has been made, and not complied with, they are not, at all events, wrongdoers. Wood v. Cohen et al., 6 Ind. R. 455.

As to the measure of damages, see Pribble v. Kent, supra.

Per Curiam. — The judgment is reversed with costs. Cause remanded for a new trial.

(1) Ante, 325.