Aderholt v. Embry

STONE, C. J. The testimony tends to show that Ward, the tenant, was indebted to James Embry one hundred and sixty dollars, for advances to enable him to make his crop, and in a further sum of fifty-seven dollars, for so much money [188] paid by'said Embry for him, Ward; total amount two hundred and eighteen dollars. There is no testimony that Mrs. Embry had any interest in this part of the claim. This is more than the alleged value of the four bales of cotton, and more than the plaintiff recovered in this suit. When Embry notified Ward not to remove the cotton off the premises, the claim set up was alike for rent and advances. The direction was, not to remove the cotton until these claims were paid. And so, when the interview was had in reference to the exposed condition of the cotton, ending in an understanding that Ward would haul the cotton to Coleman’s gin, and Embry would furnish bagging and ties for packing it, we are not informed of any word that was then said, as to the particular liability it should be applied to. If, when the cotton was hauled by Ward to the gin, it was thereby delivered to Embry in part payment of his claims, this record fails to inform us that, up to that time, Ward had given any direction as to the application of the proceeds. And if that act was a surrender of the cotton to Embry’s control, then Wal’d had .let all opportunity pass to direct the application of the proceeds. Embry could then apply it to whichever debt he chose. On this hypothesis, Ward’s abortive attempt, on two occasions after-wards, to communicate to Embry his wish that the proceeds be applied to the rent, would have accomplished nothing, even if Ward had not, before his messages reached Embry, put it out of the latter’s power to apply, or even to realize the proceeds of the said four bales of cotton. There is a rule, that if, in the negotiation for the sale of chattels, there is an agreement that they shall be counted, weighed, measured, or separated from a larger bulk, before dominion over them is turned over to the purchaser, then the sale is not complete, and the title does not pass, until the count, weighing, measurement, or separation takes place. Mobile Savings Bank v. Fry, 69 Ala. 348. But a sale may be complete without these formalities, when such is the understanding and agreement of the parties. Dominion is frequently surrendered, and number, weight, measurement, price even, left for after determination. The doctrine of quantum meruit and quantium valebat comes to the relief of many contracts, otherwise imperfectly expressed. — Shealy v. Edwards, 73 Ala. 175. We think there was sufficient testimony to justify the submission to the jury of the inquiry, whether or not, by the agreement to deliver, and the actual delivery of the cotton by Ward at Coleman’s gin, accompanied by the other circumstances in evidence, he did not surrender, and intend to surrender dominion over the cotton to Embry as purchaser. There was, therefore, no error in refusing to [189] exclude from the jury all the witness Embry had testified about the cotton being his property,- What we have said above shows the Circuit Court did not err in the refusal of the several charges asked. Referring specially to the third of the charges, its vice is that it entirely ignores the testimony tending to prove the debt for advances, due to Embry himself. Affirmed.