Hudson & Stokes v. Weir & Tate

RICE, C. J. It may be conceded that no title to the notes on Hollingsworth passed to Weir by the contract between him and Dr. Clark in relation to them, if that contract consisted simply of a stipulation, on the part of Clark, that he would sell and deliver them to Weir, for Weir’s note for half their amount, payable in lumber, and of a stipulation on Weir’s part, that he would give his note accordingly for them; for, in that case, the law would regard the stipulations as mutual and dependent, and the sale as incomplete until those stipulations were performed. But, upon the case as presented in the bill of exceptions, we cannot say that such was the contract. The bill of exceptions does not profess to set forth all the evidence; and a portion of that which it does set forth, tends to show that, by the contract, Weir’s right to [298] those notes, and to the possession of them, was not dependent on his prior or concurrent execution of his note to Clark. Whether that portion of the evidence was sufficient to establish the proposition which it thus tended to establish, was a question upon which it was proper for the jury to pass, under proper instructions from the court. There was, therefore, no error in overruling the plaintiff’s motion “to exclude said off-sets from the jury.” — Adams v. Davis, 16 Ala. R. 148. We think the charge of the court equally free from error. It distinctly informed the jury, that if defendant obtained the notes on condition, they could not be used as sets-off in this action. It also informed them, that unless they were satisfied from the proof that Weir was the real owner of the notes, before the note sued on was transferred to the plaintiffs, he could not use them as a set-off in this action. It also informed them, that if they believed that the defendant, in good faith, purchased the notes from Dr. Clark, before the note sued on was transferred to the plaintiffs, “and this purchase and sale was made in good faith, and so intended and understood by the parties at the time of the sale and purchase ; and that the notes were then and now the property of the defendant, the jury will then allow the notes as a set-off in this ease.” As the contract for the sale of the notes was for a price not exceeding two hundred dollars, our statute of frauds did not require it to be in writing, although the buyer did not receive the notes at the time, nor pay any part of the price. — Code, § 1551. By our Code, “ the party really interested” in promissory notes, the equitable owner of them, may sue on them, or use them as sets-off, if there be no better objection to his doing so, than that he has not the legal title to them. — Code, §§ 2129, 2240. There can be no doubt that, in this State, a sale of two ■specified promissory notes, at a specified price, not exceeding two hundred dollars, may be so made as to invest the purchaser with the equitable title and ownership of them, without writing, without delivery at the time of the sale, and without the payment of any part of the price at that time. — Magee v. Billingslea, 3 Ala. Rep. 619 ; Tucker v. Daly, 1 Grattan’s Rep. 330 ; Mogg v. Baker, 3 Mees. & Welsby, 194 ; Bloxam [299] v. Sanders, 4 Barn. & Ald. 941; Murchison v. White, 8 Iredell, 55 ; Everett v. Strong, 5 Hill’s (N. Y.) Rep. 168 ; Ford v. Stuart, 19 Johns. R. 842 ; Master v. Buller, 4 T. R. 340 ; Dawson v. Coles, 16 Johns. 51; 1 Wheaton, 235 ; 5 Wheaton, 277 ; Waterman v. Williamson, 13 Iredell, 198 ; Crawford v. Smith, 7 Dana, 60. We concede the correctness of the doctrine, that if anything remains to be done at the time the contract is made, either to determine the identity of the thing sold, the quantity, or the price, the contract, until such things are done, is executory, and the title does not vest in the purchaser. — Screws v. Roach, 22 Ala. R. 676 ; Crawford v. Smith, 7 Dana’s Rep. 60. But that doctrine may be reconciled with the rulings of the court above noticed. The transferror, or assignor of the note sued on, is not a competent witness for the plaintiff. — Code, § 2290. There is no error, and the judgment is affirmed.