21 Tex. 77 | Tex. | 1858
The defendants justified their detention of the goods on two grounds :
1st. That the contract of sale was not complete, and consequently the property in the goods did not vest in the plaintiff by the shipment of them.
2nd. That the sale was procured by the fraudulent representations of the plaintiff; and though complete, the vendors had the right to rescind it upon the discovery of the fraud, and reclaim the property. These were the grounds on which the defendants, in their answer, rested their defense, and it is upon one or both of them that the judgment must be maintained, if at all.
The effect of a consignment of goods generally, is to vest the property in the consignee. If the terms of the sale were agreed on by the parties, the shipment of the goods and delivery of the bill of lading undoubtedly transferred the property to the consignee, and the consignors retained only the right of stoppage in transitu. (2 Kent, 549 ; 1 Parsons on Con. 488 ; 2 Wash, C. C. R. 283 ; 8 How. R. 429; Parsons, Merc. L. 346.) But if the contract of sale was not ■complete, I apprehend the consignment and sending forward the bill of lading before the parties had agreed upon the terms of the sale, would not have the effect to transfer the property. There must be a contract of sale, to pass the property. And there is no contract unless the parties thereto assent,; and they must assent to the same thing in the same sense. There was, in this case, a proposal to purchase and an acceptance of
The present is distinguishable from the case of Wilmshurst v. Bowker, (7 M. & Gr. 882, 49 E. C. L. R.,) in this : there was a contract of sale in that case, which specified the terms
It was for the.Court to construe the writings relied on as constituting the evidence of a contract; and it would not have been improper for the Court to have instructed the jury that there was not such a contract as passed the title to the property, and consequently the plaintiff could not maintain the action.
This view of the law arising upon the plaintiffs’ evidence, would lead to an affirmance of the judgment, on the ground that he had not acquired a property in the goods, and consequently had no right of action against the defendants, for the detention of them But if we were in error as it respects our construction of the contract, and suppose the judgment to rest upon the other ground, that the contract was void for fraud practiced in procuring the sale, the result must be the same. It cannot be doubted that the jury were well warranted in the belief that the consignors were deceived and induced to make the consignment by the false impression produced by the plaintiffs’ letter and the representation made, as to the ability and standing of the plaintiff’s house. The letter was well calculated to make, and doubtless did make, a false impression upon their minds; and it can make no difference, that the impression was confirmed by the representations of another. The effect was. a deception, produced in part, at least, by the plaintiff, and for which he is responsible. The evidence places it beyond doubt, that if the consignors had been truly advised of the pecuniary ability of the plaintiff, and his business and standing as a merchant, they would not have made the consignment. But they acted under a deception produced in part, at least, by the plaintiff’s letter ; and the jury, therefore, were well warranted in finding that the contract, if complete in terms, was void on the ground of fraud. Upon either ground,
There was no question of a right of stoppage in transitu raised by the pleadings ; no such question was in issue before the jury, and the Court therefore might very properly have declined to give any instructions upon that subject. The instruction given was not erroneous; (Parson’s Mercantile Law,. 60-61; Story on Sales, Sec. 329 ;) and although abstract, can not have misled the jury. The judgment is affirmed.
Judgment affirmed.