Flanders & Huguenin v. Maynard

Bleckley, Judge. 1. Where some of the grounds of the motion for new trial are, that certain charges were given, that certain requests to charge were refused, and that certain evidence was admitted over the movant’s objection, the truth of the matters alleged in these grounds is sufficiently verified by a direct statement in the record, signed by the judge, declaring that “the above and foregoing objections to the charge of the court, and statement of the evidence, are true, and contain a correct record of the same.” Although the phraseology of this statement is peculiar and its construction difficult, yet, as there is every probability that it was intended to be a verification, and as this court cannot conjecture what else it was designed for, or discover in it any [62] other sensible meaning, there is less violence in accepting, than in rejecting it. The motion made here, by the defendant in error, at the opening of the argument, to exclude from consideration these grounds in the motion for new trial, is therefore overruled. 2. Though in negotiating for the sale of cotton, it be agreed that the sale is to be for cash, and cash only, whatever the parties, in closing the contract and making settlement, shall finally treat as the equivalent or representative of cash, will serve, pro hac vice, in lieu of money, if they really intend to conclude the sale presently and pass title at once. 3. Where a partnership, engaged in dealing in cotton under one firm name, and in banking under another, both at the same place, agrees with the owner to purchase from him, for cash, certain bales of cotton stored in a neighboring warehouse, the weights whereof are taken, and the samples of some examined, and of the balance dispensed with, the piice per pound fixed, the calculation made, and the aggregate amount assented to by both parties; and where the seller, thereupon, producing his bank pass-book, in which he has an account with the partnership as banker, takes credit in said book for the aggregate value of the cotton, as for a sum then deposited by him in the bank, and after so doing departs satisfied, taking the book away with him, nothing being said touching a delivery of the cotton, (the warehouse receipts for the same being, at the time, in the hands of a clerk of the warehouseman with whom they had been previously left by the owner of the cotton, in anticipation of a sale to other parties,) the transaction, in its ultimate form, amounts, prima facie, either to a loan of the value of the cotton, treating it as virtually paid for in cash, or to a modification of the terms of sale by converting a nominal cash bargain into a bargain on the credit of the partnership as banker. The entry in the bank book is equivalent to a receipt for money: Morse on Banking, 48, 49; and is, consequently, evidence of a loan, and of a contract for repay [63] ment on demand. It is sufficient to establish the relation of debtor and creditor between the parties; and, under the Code, §2244, it would be assignable so as to vest a right of action in the assignee in his own name. In order to recover upon it, there would be no occasion to allege or prove any sale of cotton, or any cause of action, whatever, beyond the indebtedness appearing on the book itself, the entry having been made by one of the partners, acting within the scope of the partnership business. 4. In a contract for the sale of cotton stored in a neighboring warehouse, both parties knowing it to be there, an intention to dispense with actual delivery may be inferred from circumstances, without any direct agreement; the circumstances including a settlement covering the whole price, and failure to stipulate anything concerning delivery. If the parties considered the sale complete in respect both to price and delivery, that is, that the buyers could take the cotton' from the warehouse when they pleased, and the seller draw on them, as bankers, when he pleased, for the money specified in the entry upon the bank book, the title passed. On the other hand, if the true intention of the parties was, that, notwithstanding the entry upon the book, the cotton was to remain in the warehouse and under the control of the seller until the money should be actually paid to him or his order, or his agent — that is, that final delivery and final payment were to be concurrent acts, then title did not pass. 5. Though goods be delivered, if as a part of the contract under which delivery is made, they are, by express stipulation, to remain the property of the seller until paid for, there is but a conditional sale, or an executory agreement to sell; and the title of the seller cannot be defeated or impaired by a subsequent sale made without his consent to a bona fide purchaser, for value and without notice. Story on Sales, (edition of 1871), §§400, 457 a, 313, and notes; 40 N. Y. (Hand) 314; 2 Kent’s Com. 493 to 498; 23 Ga. 205. 6. In the selling of cotton by a planter or commission [64] merchant, “ on cash sale,” the Code, §1593, renders the sale executory until payment is made in full; until then no title whatever passes out of the seller, and, consequently, even a bona fide purchaser for value and without notice, can get no right as against him. The case is not like that of title obtained by fraud, which is provided for in section 2610 ; the difference being that which exists between no title and voidable title. Put only transactions “on cash sale” are thus qualified in the Code by implication of law, and protected. 7. A conversation which was otherwise irrelevant, became relevant by being repeated in the course of the negotiations which are now under scrutiny. 8. When the action is for a conversion of cotton, and when the defense proceeds on the theory that the plaintiff parted with title to a third person, and he to a fourth, by whom the cotton was consigned to the defendants as factors, and who received from them advances upon it to near its full value, declarations of this third person made to the plaintiff after the defendants acquired possession and advanced their money, and whilst said third person was out of possession, are not admissible in evidence for the plaintiff, even if said third and fourth persons were in collusion with each other, and if the transaction between them was merely colorable and designed to defraud the plaintiff, the defendants having acted without notice of any fraud. Judgment reversed.