Vehmeyer v. Earl

Moran, J. As between vendor and vendee the title of personal property passed upon the completion of the sale without any delivery. A sale of a specific article by weight, the price being agreed upon between the parties, may be a complete sale although the article has not been weighed, if the parties intended it should be complete. O’Keefe v. Kellogg, 15 Ill. 347; Holliday v. Burgess, 34 Ill. 193. "Where, by the terms of the contract, anything remains to be done to complete it, such as ascertaining the quantity, the delivery of possession or the like, the title does not pass till the contract is thus completed. When the sale is agreed upon, the price fixed, the possession delivered,and the quantity yet to be ascertained, whether the title will pass, and the contract be held complete, depends upon what shall be found to have been the intention of the parties as gathered from the contract itself, the acts of the parties and the attending circumstances. Seckel v. Scott, 66 Ill. 106. In this case the trial court has found from the evidence that" it was the intention of the parties that the title to the car load of broom corn about which the controversy has arisen should pass to appellant notwithstanding the weight thereof was to be ascertained by the appellees or in their presence. We should be authorized to reverse such finding only in case of its being manifestly against the evidence. We do not so regard it, but on the contrary, we think the finding clearly supported by the facts. The vendor indorsed the warehouse receipts for the broom corn and delivered them to the vendee, and thus clothed him with the full indicia of ownership of the property and absolute dominion over it. The vendee had the right to let the broom corn remain in the warehouse daring the month, but might have taken it to his own place of business whenever he saw fit. That it had to be weighed to ascertain how much should be paid for it is true, but it was to be weighed only to find the sum to be paid for it. It was not to be weighed for the purpose of identifying or ascertaining the property or to separate its quantity from other like articles. That it was to be weighed by the vendors or in their presence was manifestly for their protection or satisfaction as to the weight, and'was not intended as of the nature of a condition necessary to precede the vesting of the property. The weighing was to be done after the broom corn had been taken from the warehouse by the vendee by authority of the warehouse receipts which had been delivered to him, and after he had the actual possession of the broom corn itself at his place of business. These circumstances are strong in support of the conclusion of the Superior Court, and there being no ground for •reversal the judgment of said court must be affirmed. Affirmed.