69 Mo. App. 390 | Mo. Ct. App. | 1897
Lead Opinion
This case is here the second time by appeal. The opinion on the first appeal is found reported in 53 Mo. App. 493. On the second trial, at the close of the evidence on the part of the plaintiff, the court gave an instruction in the nature of a demurrer to the evidence, whereupon the plaintiff took anon-suit, with leave to move to set the same aside. This motion he filed in due time, and this being overruled, and exceptions taken, he appealed to this court.
Under the authority of Stewart v. Berguson, 79 Mo. 524; Burgert v. Borchert, 59 Mo. 80; Wright v. McCormick and Claftin v. Rosenberg, supra, the evidence being undisputed, it was the duty of the court to decree the sale fraudulent and void as to respondents. The case was tried upon the theory of a sale. We do not feel it our duty to discuss it upon another theory, raised by the discussion in respondents’ brief, as the result would not be different by accepting that theory of the case.
The judgment is affirmed.
Concurrence Opinion
(concurring). — This case was tried the first time on the assumption that the evidence tended to prove a complete sale of the corn as between Red-man and Bush. The matter of contention was as to the validity of the sale against respondents who were execution creditors of Bush. It was claimed that Redman had not taken possession of the corn as required by the statute of fraudulent conveyances. R. ¡3. 1889, sec. 517§. The case was reviewed upon the theory upon which it had been tried. 53 Mo. App. 493. On the second trial counsel for respondents challenged the sufficiency of the evidence to prove a completed sale. The instruction of nonsuit, which the court gave, rests on this.
The claim is that under a view of the evidence most favorable to the relator the negotiations between him and Bush failed to make out a present sale of the corn. In support of this counsel argues with much force and plausibility, that the testimony tends only to show a contract for services and for feeding cattle in the nature of an agistment, and not an agreement for the sale of the corn, for the reason that under the agreement no delivery of the corn as corn was contemplated. I will put this view aside, without attempting to controvert it, and treat the negotiations between Redman and Bush as an attempt to sell the corn itself.
Respondents erroneously attempt to apply as tests to the alleged sale the provisions of the statute of frauds in reference to the sale of chattels, which in substance provides, that no sale of goods, wares, or merchandise, for the price of $30 or upwards, shall be valid, unless all or a part of the goods are delivered and accepted, or unless the buyer gives something in earnest to bind the bargain, or unless a memorandum of the sale is made and signed by the party sought to
The question is, did the title to the corn pass to Redman? If not, his action must fail. The doctrine of the common law in reference to sales is, that if the seller has performed everything that is required of him as seller, and the property is so situated that the buyer may rightfully take possession of it at his pleasure, the title passes. Actual delivery is not necessary. Williams v. Gray, 39 Mo. 201; Southwester, etc., Co. v. Stanard, 44 Mo. 71; Hening v. Powell, 33 Mo. 468. But the converse of this proposition is not always true — that is if something remains for the seller to do, or the immediate delivery of the property is not contemplated the title does not pass. The presumption is to that effect, but the presumption may be rebutted by satisfactory proof of a contrary intention of the parties to the sale. In other words, the question of the passing of the title is one of intention either express or implied. Benjamin on Sales, pp. 248-251. As it was a part of the bargain in this case that Bush should gather the corn, and as there was no manifestation of an intention that the title to it should pass to Redman, the presumption becomes conclusive, that it was the intention of the parties that it should not pass. This made the contract executory,—