Nesbit v. Burry

The opinion of the Court was delivered by Lowrie, J. — There was error in the instruction that, after the parties had agreed upon the terms of sale, and the mode of ascertaining the weight, and part of the price had been paid, and when the agreed means of weighing had failed, the refusal of the vendor to adopt other means or to carry out the contract at all, vested the property in the vendee. The weighing being necessary to a perfect sale where there is no delivery, is not dispensed with by an unsuccessful attempt to weigh, or by a refusal to try a better mode of doing it. These matters left the parties as they stood before, and the title remained in the vendor. Nor does earnest or part payment aid in vesting' the title where the quantity is yet to be ascertained, and there is no delivery. Under such circumstances the contract is essentially executory, and the part payment only shows a concluded and binding agreement. Taking the facts as above stated, the sale remained imperfect and executory, and the vendor might refuse performance subject to the vendee’s right to damages for the breach. The other instructions are correct. Judgment reversed and a new trial awarded.