21 S.E. 683 | N.C. | 1895
The City of Asheville, by one of its ordinances, prohibits by fine the sale of fresh meats without a license first had from the city, within a radius of three-fourths of a mile from the Court House as the center of the circle, except at the market established by the City. The defendant, who lived and conducted the business of a seller of fresh meats outside of the three-fourths mile limit, received a telephonic message from C. H. Southwick, manager of a hotel inside of the limit, to bring to him at the hotel some fresh meats, the price being agreed on. Agreeably to this message the defendant brought, in his own (1062) wagon, the meats to the hotel and delivered the same, receiving payment afterwards. In making this transaction did the defendant violate the city ordinance and thereby become liable for the fine imposed by the city? We are of the opinion that he did. In the first place the goods ordered were not of a specific character and therefore the contract was only executory. The witness said, "I telephoned to the defendant to send me some fresh beef and fresh mutton, describing such as I desired." It cannot be doubted that if the meat when delivered at the hotel had not been of the kind ordered, the buyer could have refused to receive it. "Where there is a sale of goods generally no property in them passes until delivery, because until then the very goods sold are not ascertained." Benjamin on Sales, sec. 315. The general rule is that if it is a part of the contract of sale that the seller shall deliver the property sold at some place specified and receive payment on delivery, title will not pass until such delivery. Benjamin, supra, sec. 325;Edmundson v. Fort,
2. The transaction was executory. The difference between this and a sale is, that in the latter the goods which are the subject of the contract become the property of the buyer immediately upon the conclusion of the contract regardless of delivery, and the risk of loss or injury is upon the buyer; whereas, in an executory contract the title to the goods is in the seller until the contract is executed. If in this case the fresh meats had been lost or destroyed on their way from the defendant's shop to the hotel, how could it be thought that the proprietor of the hotel would be compelled to pay for that which he had never received and which the defendant promised to deliver to him at his hotel in good condition?
The plain meaning of this matter is this: The hotel manager (1063) sent a message to a seller of meats outside of the three-fourths. *623 mile limit, "Bring me some fresh meats of a certain description; if they are such as I order I will take them and pay you for them; if they are not of the kind I order, I will not." Surely there is no sale in this.
3. The transaction cannot be a sale. In a bargain and sale, the thing which is the subject of the contract becomes the property of the buyer the moment the contract is concluded, without regard to whether the goods are delivered to the buyer or remain in the possession of the seller. Lester v.East,
There is no merit in the exception made by the defendant to the court's allowing an amendment to the warrant issued by the mayor. The amendment did not change the nature of the action, and therefore the power of the court to allow an amendment was unrestricted. S. v. Vaughan,
Affirmed. (1064)
Cited: Sims v. R. R.,
