33 Mich. 386 | Mich. | 1876
Where, under a contract for the purchase of personal property something remains to be done to identify the property, or to put it in condition for delivery, or to determine the sum that shall be paid for it, the presumption is always
But we do not see how the judge could say, as matter of law, that delivery according to the understanding passed the title to the logs in this case. Delivery is usually the most significant fact in such a transaction, but it is not conclusive. One may receive delivery of something he has bargained for on the express understanding that the title shall not pass until the weighing or measuring which is to determine the price has been done. And if there may be an express understanding to that effect, so there may be an implied understanding of a like character. In this case delivery was to be made, not to the purchaser, but to the booming company, and the question at issue really is, for whom was the company bailee after the logs had been so delivered. The fact that the defendant was to pay the company’s charges raised a strong presumption that they were held for him, and that the company was his bailee. But,'on the other hand, the fact that the logs were to be subsequently scaled in order to determine how much should be paid, had a tendency to rebut this presumption. Moreover, no credit appears to have been agreed upon, and the
The charge of the judge assumed that the title to the logs passed to the purchaser as soon as they had been delivered at the place in the river which the jury should find was the one agreed upon. Perhaps the jury may have reached this conclusion as an inference of fact from the evidence, but we cannot say that the opposite conclusion would have been unwarranted. However this may be, the question was one of fact, not of law.
The judgment must be reversed, with costs, and a new trial ordered. •