Wright v. Maxwell

Davison, J. The complaint charges that Wright, who was the defendant, was indebted to Maxwell 30 dollars, for [193] one and a half bushels of Osage orange seed, by him sold and delivered to the defendant. The justice of the peace before whom the case was originally instituted, gave judgment against the plaintiff, from which he appealed. In the Common Pleas, the cause was submitted,to a jury, who found for the plaintiff. New trial refused, and judgment. Pleasant Winston, a witness examined on the trial, testified as follows: In May, 1854, witness was a clerk in James Mix's store in Lafayette. Wright and Maxwell came into the store, the latter having one and one-half bushels of Osage orange seed in a bag, which he said he had sold to Wright for 30 dollars. It did not suit Wright to pay, as he had not the money with him; but he was to call in a few days and take the seed and pay the 30 dollars. Maxwell told witness to deliver the seed to Wright when he should come and pay the money; but he was not to have the seed until he paid for it. It was left in witness’s care, subject to Wright's order, on payment of the 30 dollars. Ten days afterwards, Wright called at the store, said he would in a few days pay for the seed and take it away; but he failed to do so. The seed remained in Mix's store all summer, and was still there this spring. Wright was not to have the seed delivered to him until he paid for it, and he never paid for it. This was all the evidence. And the question to be considered is, does it sustain the verdict? The appellant contends that, there being no delivery of the property to the vendee, the sale was incomplete and the action not maintainable. We are not inclined to adopt these conclusions. Property in personal chattels may pass by bargain and sale without delivery, unless, indeed, some act remains to be performed by the vendor, such as weighing, measuring, or counting out of a common parcel. Until this is done the sale would be incomplete. Chit, on Cont. 375, et seq. But in the case before us, the property sold was measured, its quantity distinctly ascertained, and it was deposited by the parties with their mutual agent, to-be by him delivered to the vendee when he paid [194] for it. No act in performance of the contract of sale remained to be done by the vendor. And though there was no actual delivery, still the sale itself, without such delivery, passed the property in the article sold to the vendee. Bradley v. Michael, 1 Ind. R. 551.—Fletcher v. Howard, 2 Aik. 115.—8 Blackf. 325. True, the parties, in their contract, omitted to name a day of payment; but their omission to do so, allows the inference that the vendee agreed to pay the purchase-money within a reasonable time. And having suffered such time to elapse without payment, we perceive no ground upon which he can resist the plaintiff’s action. R. A. Chandler, for the appellant. H. W. Chase and J. A. Wilstach, for the appellee. Per Curiam. The judgment is affirmed, with 10 per cent. damages and costs.