Albemarle Lumber Co. v. Wilcox

Avery, J. after stating the facts: We concur with the Judge below in the opinion that, if the testimony was true or was believed by the jury, the title to the lumber vested in the plaintiff when it was placed on board the Company’s schooners at Smith’s Landing. “ A sale is the transfer of the absolute or general property in a thing for money,” or anything of value. When the property purporting to be sold is, so separated as to be fully identified and distinguished from other property of like kind, and the price is certain, or by the terms of the agreement can be ascertained (as in our case, by measurement and inspection at Elizabeth City), the payment of any part of the price as earnest money, or by note in lieu of it, or the delivery of the property, postponing the settlement till the quantity can be definitely determined, makes the sale complete. Waldo v. Belcher, 11 Ired., 609; Morgan v. Perkins, 1 Jones, 171; Cohen v. Stewart, 98 N. C., 97; May v. Gentry, 4 Dev. & Bat., 117. Where there is an actual delivery, but no distinct agreement as to the exact price of an article, and 39 no means provided of making it certain, the title does not pass,' and if the person consume the article so delivered to him, he becomes liable, upon an implied agreement, to pay its reasonable value, but not by force of the inchoate contract to sell. Wittkowsky v. Wasson, 71 N. C., 451; Devane v. Fennell, 2 Ired., 36.- The lumber belonged to the plaintiff company, in any aspect of the testimony, when it was seized by the Sheriff under the warrant of attachment. Affirmed.