93 Iowa 316 | Iowa | 1895
Plaintiff is a copartnership composed of N. P. Wind and George F. Silvers, heretofore, and during the years 1881, 1882,1888, and 1884, doing business as wholesale and retail liquor dealers in the city of Ottumwa, Iowa. Defendant Her & Co. is a copart-nership composed of the other defendants, doing a wholesale liquor business in the city of Omaha, Nelb. Sometime during the latter part of the year 1881’ defendants’ traveling man, one Gilmore, called upon the plaintiff at their place of business in Ottumwa to induce
The first question which arises is, were the sales made in this state? From what we have already stated
It is claimed that by the terms of the contract the title was not to pass until the plaintiff was satisfied, after tasting the liquors, that they were the kind' ordered. The law has made a somewhat refined, yet no less obvious, distinction between an option to purchase if satisfactory and an option to return if not satisfactory. In the one case title will not pass until the option is determined, and in the other case the property passes at once, subject to the right to rescind and return. The former may be said to be a conditional sale, and the latter has been denominated a “sale or return.” Hunt v. Wyman, 100 Mass. 198; Foley v. Felrath (Ala.), 13 South. 485; Newmark, Sales, section 310; Buswell v. Bicknell, 17 Me. 344; Benjamin, Stales (Bennett's Ed.), p. 569, and cases cited. It is also well settled that the rule that title does not pass so long as anything remains to be done to the goods- to ascertain their value, quality, or quantity, is only applicable to cases- of constructive delivery. Bogy v. Rhodes, 4 G. Greene, 133. Under this rule the right reserved to plaintiff, to inspect and test the goods after they came into their actual possession would not operate to postpone tbe-tramsfer of
Let it be conceded, however, for the purposes of this case, that the sales of the liquor took place at
The question yet remains, did the drawing of the bung in the barrels in which the liquors were shipped into the state have the effect claimed for it by the appellant? We think not. The barrel was opened in order that a small quantity might be taken from it and tested, — not used, — in order to determine whether the