Rhea v. Riner

Walker, J. It is urged as ground for a reversal of the judgment below, that as the property replevied was not delivered to the plaintiff below at the time the sale was made, that he could not maintain the action. At the common law a delivery of possession was not necessary to pass the title to chattels from the vendor to the purchaser. To complete the purchase and vest the title in the buyer, it was only necessary that the terms of the sale should be complete and the property sold specified and separated from other property of the same kind, where it was incapable of identification. When this was done by the parties the sale was complete and the title to the property became vested in the purchaser. But the 17 th section 29 Car. 2, provides that no sale of goods, wares, or merchandize, for the price of ten pounds sterling or upwards, shall be allowed to be good, except the buyer shall accept part of the goods sold and actually receive the same, or give something in earnest to bind the bargain, or in part payment, or some memorandum in writing of the bargain shall be signed by the parties to the contract, or by their duly authorized agents. It will be observed that, in our statute of frauds this provision of that act is omitted, and consequently the common law is left in force to that extent. And if the contract was completed by the parties and nothing remained to be performed except to deliver the property to plaintiff below, and the parties understood and intended that the title to the property should pass without any further act of the parties, then a delivery was not essential to the right to maintain the action. And what the terms of the contract were, and whether it was consummated by the parties, was a question of fact to be determined from all the surrounding circumstances, and while the evidence is not clear and entirely satisfactory, yet it was sufficient to justify the inference that the contract was complete and the title to the animal in controversy, had vested in the plaintiff. At the time of the trade, the defendant received and took away with him the animal he got in exchange for his, and by arrangement of the parties was to retain the animal he gave in exchange, for the purpose of plowing, a short time. It seems from the evidence that he afterwards gave notice to appellee that he would deliver the animal in a week afterwards, but when the demand was afterwards made he refused to deliver it to appellee. It is again urged that the exchange of the horses was upon the condition, that if anything happened to either, it was not to be a trade. And that the animal given by appellee did become diseased and that appellant offered to return the property he had received and demanded that given by him, and .consequently there was no liability incurred by refusing to deliver the animal he gave in exchange. There was some evidence that •the animal given by appellee became stiff soon after the exchange was made, but all the evidence, as well that of the appellant as of the appellee, is that it only lasted a few days. And the ■ evidence conflicts as to whether she was disordered as alleged. Some six witnesses called by appellant testify that when returned • and offered to appellee, she was quite stiff, while some five called by appellee as explicitly testify that they saw the animal at the time, and that she was not so diseased. Even granting that a condition was inserted in the contract, that the sale should be .rescindedin case either animal became diseased before they were ■ delivered, still whether that event had occurred was a fact to be determined by proof, and it was a question for the jury alone i to determine from the evidence. And their finding should not . be disturbed unless it is clearly against the evidence, which is .not the case in this finding. Ñor did the terms of the contract . authorize either party to rescind the sale unless the event oc- • curred. It was not enough that he asserted it to be true, but .he was bound to establish it by proof. Neither was a trifling, ’temporary ailment sufficient to authorize a recision of the sale. ' The true construction of the agreement, contemplates sobe in-_ jury or disease, of such a character as would render the animal less useful or valuable, and not a trifling or natural ailment. ' There is no pretense but the animal was free from all appearance of disease until after she had her foal, and it may be that the apparent stiffness of this animal resulted from that fact, and if so that was not within1 the condition of their agreement. We, after examining the whole record, are of the opinion that there is no error in either giving, refusing, or modifying the various instructions asked, and that the evidence sustains the finding of the jury, and that there is no error in the record requiring the reversal of the judgment of the court below. The "same is therefore affirmed. Judgment affirmed,.