Schneider v. Westerman

Walker, J. All of the evidence in this record concurs in establishing the fact that all of these beer puncheons, except five, were not removed from Seo’s or delivered by him until after the death of Ewalt. And as the title to personal property cannot vest in the purchaser until the purchase is completed, and nothing remains to be performed under the agreement; until the puncheons were completed and ready for delivery, the title to the property was not vested in Ewalt. The • title could not vest by force of the agreement to manufacture them. Until completed ready for delivery, and notice to remove them, or some such act were performed, they still remained the property of the manufacturer. Nor did the title to this property vest in the estate after Ewalt’s death, unless Winkle, who received them, was the executor, administrator, or otherwise a proper agent for the estate, and authorized to receive them, and if he was, then, by virtue of the same authority, he was authorized to sell them and pass the title. From the evidence in the case, it appears that ten of these puncheons were not made under the agreement with Ewalt, but were paid for by Winkle. There is nothing in this record which discloses a shadow of the claim of title in the administrator to these ten puncheons. Winkle bought, paid for, and had them in his possession at the time the mortgage was executed, and we can see nothing which could have passed the title of this property to the estate. It could not be claimed that he had appropriated the property of the estate to his use and was indebted to it; and the evidence strongly tends to show that he had paid some twelve or thirteen hundred dollars of Ewalt’s debts, over and above the value of the property of the estate which came to his hands. There can be no question upon the facts disclosed by the record that the plaintiff was entitled to at least the ten puncheons. It is likewise insisted that the court erred in rejecting the evidence of Jotheo. Plaintiff offered to prove by this witness, the amount of Ewalt’s debts which was paid by Winkle, and the amount of property belonging to the estate which came to his hands. Whilst the same facts had been proved by Mrs. Winkle, the plaintiff had the right to prove them by other witnesses, unless the evidence was irrelevant or otherwise improper. We can perceive no objection to this evidence, if it was designed to be insisted that the money paid by Winkle to Seo for the beer barrels belonged to the estate, as by showing that he had paid a larger amount of debts than he had received property and money, it certainly would tend to rebut that presumption. We are, for these reasons, of the opinion that this evidence was admissible, and that the court erred in its rejection. The judgment of the court below is reversed, and the cause remanded. Judgment reversed.