Upshur Guano Co. v. Malloy

*678 Avery, J. — after stating the facts: According to the agreement (a correct copy of which appears in the statement of the facts), the time of payment for the guano shipped was the first of May; but, if the defendant desired indulgence, we find, by construing both of the memoranda signed by the parties, that the time of payment was, by the terms of the contract, to be extended, and the defendant, “ when called upon,” was to give the plaintiff his four notes, for equal installments, payable respectively November 1st, November 15th, December 1st and December 15th, 1885, with interest added to each, at the rate of nine per centum from May 1st, 1885, till the date of maturity. There is neither an allegation nor evidence that these notes were or were not executed. The plaintiff alleges that the guano has not been paid for, but offers no testimony in support of that controverted allegation. It does not appear whether the plaintiff ever called upon the defendant to execute the notes. When the 'one hundred and twenty bags of guano were delivered at the railroad depot at Norfolk, the property in them passed to the defendant. Nothing that was necessary to perfect the defendant’s title remained to be done. The plaintiff had no right to seize or sell the guano, unless the contract could be construed to be a conditional sale or mortgage. The agreement in the case of Chemical Co. v. Johnson, 98 N. C., 123, provided that the notes taken by the defendant Johnson, for sales of goods, were to be forwarded and held as collateral security for the payment o.f notes executed by him to the plaintiff company, and that “all of the goods, as well as the proceeds therefrom, were to be held in trust by him for the payment of his notes due the company, whether the same had matured or not.” In our case, the notes and proceeds of sale were to be held in trust, but not the guano itself. Yet the Court, even in that case, held that the delivery, as in this, passed the property in the fertilizer *679 shipped. In Millhiser v. Erdman, 98 N. C., 292, and same case, 103 N. C., 27, it was iield that the title to. the property shipped did not pass to the purchaser, nor vest in his assignee, because, by the very terms of the contract, the execution of the drafts were of its essence, and the sale was not to be complete until they were executed and delivered. It does not appear in this case, whether the notes were called for, and if so, whether they were executed and forwarded. We therefore see no error in the intimation of his Honor, that the admission of the execution of the contract offered, and the testimony of the witness Bryant, did not make a 'prima facie case for the plaintiff. There is no error. The judgment must be affirmed. Affirmed.