3 Shan. Cas. 43 | Tenn. | 1878
delivered t-be opinion of the court:
There was judgment for Gill in the circuit court of Lincoln county, in action of replevin instituted by him, and the defendants have appealed in error to this court. Dean & Co. executed two deeds of trust to Gill, as trustee, which were executed, proved and registered, respectively, on 4th and 5th of May, 1875. On the evening, perhaps, after these deeds were executed, which conveyed all the property of Dean & Co. for the benefit of creditors, Dean told Gill he had ordered some goods from Anthony, which had not
The foregoing 'facts raised the question whether there had been a valid sale by Dean to Gill, or whether the goods were still hable'to execution as the property of Dean & Co.
The circuit judge instructed the jury that a sale of personal property is said to be complete when the owner offers to sell it for a certain price and the purchaser agrees to take it at the price .'asked. If nothing more remains to be done after such offer and acceptance, then the purchaser is entitled to the goods and the seller to- the consideration agreed to be paid.
For plaintiff in error it is insisted that this definition of a sale of personalty is erroneous; and that to make a valid sale 'of personal property there must have been an actual deliveiy of gpods to the purchaser.
In the same booh, however, it is said that the preponderance of the authorities is, at the present time, that possession by the vendor simply raises a presumption of fraud, and that whether such presumption is rebutted, is a question for the determination of the jury. Ibid., 150,151.
So this court has held if one party says I will take a certain sum for a specific thing, and the other says I will give it, the trade is complete. 9 Hum., 281; 2 Sneed, 25.
The circuit judge instructed the jury that if Dean retained possession after the alleged sale, it would be prima facie evidence of fraud, and if made to hinder and delay creditors, it would be void. But whether there was a sale at all, or an intent to defraud creditors, was left’ to the jury to determine under proper instructions.
It is also insisted that the sale is void under the statute of frauds.
It will be observed that Anthony does not bring this suit against Gill to recover upon his promise to Dean to pay Anthony’s debt against Dean. If so, it would fall within the principle decided in the case of Campbell v. Findley, 3 Hum., 330.
But the question here is, was the undertaking and agreement of Gill with Dean to 'pay Dean’s debt to Anthony, a sufficient consideration, as between Deán and Gill, for the goods sold by Dean to Gill, and we are of opinion that it was.
The charge of the court, we think, is in all respects correct, and the verdict of the jury is sustained by the evidence, and the judgment will be affirmed.