Millhiser v. . Erdman

MeeriMON, J. In our judgment the Court misinterpreted the contract of sale, and misapprehended the legal effect of what the plaintiff did towards its execution. The intention of the parties to the contract must prevail, and this must, in this* case, be ascertained from the correspondence set forth as above, and the attending circumstances, as these appear from the facts admitted, and in order to determine the meaning and purpose intended, the whole must receive a reasonable and just interpretation: Unquestionably, if the plaintiff had not shipped the tobacco in controversy to the defendant Erdman, the latter would have had no title to, nor indeed, any right in respect to it, unless he had first tendered to the plaintiff the promissory notes which he had agreed to give for it. This is so because a material and essential part of the contract was that the delivery of the notes, on the part of Erdman to the plaintiff, was to be done concurrently, simultaneously, with the delivery of the tobacco to him on the part of the plan-tiff. The latter proposed to sell the tobacco to Erdman, in consideration of his three promissory notes, running respectively to maturity at three, four and five months, and the latter, by sending his order for it, obviously accepted the terms. The parties agreed to do material concurrent acts *297 necessary to effectuate the sale, each dependent on the other, and neither effectual without the other. It was not contemplated that the tobacco should be delivered, and the notes given at a future day thereafter, nor was it agreed expressly •or by reasonable implication that the title to the tobacco should pass to any extent for any purpose, until the concurrent, dependant acts should be done. As no particular time for the delivery of the notes was agreed upon, the implication is that they should be delivered concurrently with the delivery of the tobacco, as much so as if the parties had been in the presence of each other and dealing across the counter. This plainly appears from the terms of the proposition to .sell, and the acceptance of the same, as well as from the letter enclosing the invoices of the tobacco shipped, and the notes to be executed, and sent to the plaintiff by Erdman. But the contracting parties were not in the presence of each other, so that the things to be done in pursuance of the contract >could be presently done; one of them was in Richmond, the other in New Berne, hundreds of miles intervening between them. The plaintiff, in pursuance of the agreement to sell, shipped the tobacco to the buyer, not intending to part with his title to it until the notes should be •sent to him, and the buyer was bound to so understand from the terms of sale so proposed and accepted by him, as well as from the invoices and notes prepared for execution sent to him and the subsequent letter proposing to modify the terms as to the time the notes should become due. When, therefore, the buyer got possession of the tobacco, this was not for the purpose of passing the title to him until he did the concurrent act of sending the notes to the seller. Such .shipment and possession were only steps in the way of the execution of the contract, and ineffectual as against the seller, until the concurrent act should be done on the part of the buyer. The possession thus coming about was of and for the plaintiff until the notes should be sent to him. *298 Erdman got no title to the tobacco, because he faithlessly failed to send his notes to the plaintiff as he agreed to do, and as he had no title, had a mere naked possession, and that for the plaintiff, without any right, he could not pass any title to the trustee for creditors, as he undertook by the deed of assignment to do. No sale of the tobacco was consummated or made effectual under the contract. There was only an agreement to sell, which was not perfected. The plaintiff did not agree or intend to part with the title to his tobacco until he received the notes, and Erdman had no right to expect to get title to it until he sent the notes. 3 Kent’s Com., 497; Story on Contract, §§800, 803; 1 Par. on Con., 528 (5 Ed.); Benj. on Sales, §§325, 334, 366, 425, 541, 550, 570, 582, 583, (4 Am. Ed.); Haggerty v. Palmer, 6 Johns., ch. 437; Palmer v. Hand, 13 Johns., 434. The statute (The Code, §1275,) which requires '‘all conditional sales of personal property, in which the title is retained by the bargainer,” to be reduced to writing and registered to make the same effectual as against creditors and purchasers, has no application here. There was, as we have seen, no sale consummated, conditional or otherwise. This statute applies to cases where the bargainer sells and delivers the personal property to the bargainee, retaining the title thereto as a security for the purchase money until paid, while the latter has possession of, uses and controls it for his own benefit. Brem v. Lockhart, 93 N. C., 191; Empire Drill Co. v. Allison, 94 N. C., 548. There is error. The plaintiff is entitled to a new trial, and we so adjudge. To that end let this opinion be certified to the Superior Court according to law. Error. Venire de novo.