McCall v. Powell

BRICKELL, C. J. We are not of the opinion this case bears such analogy to Sumner v. Woods (52 Ala. 94), and Dudley v. Abner, (Ib. 572), as to be controlled by their authority. In each of those cases, the transaction was esteemed, in effect, a conditional sale. The vendee was clothed with a possession, separate from, and independent of the vendor ; not opening up inquiry, or calculated to excite it, as to his title. There was a sale, for a stipulated price, which the vendee was bound to pay. A condition was annexed, that the vendor, if the price was not paid, when it became due and payable, should have the right to resume possession of the property; and that until the price was paid, the title should remain in him. As to bona fide purchasers from the vendee, having no notice of the condition annexed, it was held the sale must be regarded as absolute, though, as between the parties, it would be conditional. The transaction in-the present case, as the evidence introduced by the plaintiff tended to show (and it was not contradicted), was of an entirely different character. A landlord purchased two mules, and turned them over to a tenant, to cultivate crops on the rented premises ; promising the tenant that he would sell the mules to him, when he was able to purchase them. No price was agreed upon ; the tenant testifying, that he was willing to trust the landlord as to the price, if he was able to purchase ; and the landlord testifying, that he expected, or intended, to charge only the price he had paid for the mules. The transaction was a mere bailment, with a privilege of purchasing, which the tenant could exercise or not at his option. Chamberlain v. Smith, 44 Penn. St. 431. And bailments are expressly excepted by C. 3. Tilghman from the operation of the principles laid dowm in Martin v. Mathiatt (14 Serg. & Rawle, 214), the leading authority relied upon to support the conclusions reached in Sumner v. Woods, and Dudley v. Abner. A sale is defined as a transfer of the absolute or general property in a thing, for a price in money, paid or promised; or, as sometimes defined, it is an agreement of both parties, that the property shall pass from one to the other, for a consideration given, or promised to be given. The price to be paid, the consideration moviug the vendor, and a transfer of property, are of its material constituents. The landlord and tenant, in this case, contemplated a sale in the future; or the transaction, it may be, amounted to an offer to sell, time being given for acceptance, when, if there was acceptance, the price would be paid. There was no sale, nor was there a 259 possession in pursuance of an agreement to sell. The tenant is suffered to use the mules in cultivating the premises rented of the landlord, to the proper cultivation of which they were necessary; and such cultivation was to the interest alike of landlord and tenant. Such transactions between landlord and tenant are not, as were the contracts in Sumner v. Woods, and Dudley v. Abner, without the usual course of business; nor do they afford the opportunity for frauds upon purchasers from, and creditors of the tenant, which those contracts were supposed to afford as to purchasers from, or creditors of the vendee. They are, doubtless, of very frequent occurrence, and are necessary to stimulate the energy, industry, thrift, and economy of a large class of the agricultural tenantry. No purchaser from, or creditor of the tenant, can be misled by them to his injury, if he will exercise the diligence, and make the inquiries, which the present condition of things naturally excited.' If he does not exercise it, he has only his own carelessness, or his willingness to remain in ignorance, to blame, if he suffers from dealing with the tenant. We see no error in the instructions the Circuit Court gave the jury, nor in the refusal of the first, third, and fourth instructions requested by the appellant. 2. Verbal admissions, which are acted on by the party to whom they are made, will often operate as an estoppel upon the party making them. But admissions made after a transaction is complete, which they did not invite or influence, do not operate as an estoppel. They are mere evidence of the facts admitted; subject to contradiction or explanation. There was no error in the refusal of the second charge requested by the appellant. The judgment is affirmed.