Wilson & Wallace v. Comer

Cobb, P. J. (After stating the foregoing facts.) The sole quesiion in this case is whether title to the lumber passed to the defendant, or whether it remained in the plaintiffs until the check was received in payment of the lumber. If title passed, trover would not lie, and a nonsuit was properly granted. “If personal chattels be sold upon the express condition that they are to be paid for on delivery, and they are delivered upon the faith that the condition will be immediately performed, and performance is refused upon demand in a reasonable time, no title passes to the buyer.” Bergan v. Magnus, 98 Ga. 514, and cit. The transaction in this case was clearly a cash sale, and no title passed to the defendant. The granting of a nonsuit was therefore erroneous, and the judgment is Reversed. All the Justices concur.