Merrick v. Bradley

Bartol, J., delivered the opinion of this Court: This action was brought by the appellee, on a bill of ex [55] change, or draft drawn by Clinton Wright, and accepted by the appellant; being for the stipulated price of a negro' woman sold to Wright by the appellee. The case comes' before us, upon an exception taken to the prayer of the plaintiff below, which was granted by the Circuit Court, (see ante 53.) In the argument of the cause in this Court, the appellant has contended that “no delivery in fact or in law, was made out by the plaintiff’s statement in his prayer, as was necessary to entitle him to recover.” (Decided December 3rd, 1862.) In passing upon the case, however, it is. unnecessary for us to decide whether the facts enumerated in the prayer, constituted a delivery of the property sold, actual or constructive, to the purchaser. We are clearly of opinion that the receipt and the order on Wallace, which was accepted by the purchaser, operated as a valid sale of the property, by which the title and right of possession passed to him, and it was thereafter at his risk. On this point the case i» within the principles decided in Franklin & Armfield, vs. Long, 7 G. & J., 407, 411; Clary vs. Frayer, 8 G. & J., 399; and Hall & Loney, vs. Richardson, 16 Md. Rep., 369. In Franklin & Armfield, vs. Long, the Court say, “But a delivery of goods actually sold, is not necessary to pass the right to the vendee, if there be any thing given in earnest, or a payment of the whole, or a part of the purchase money, or a sufficient note or memorandum in writing of the bargain.” 8 G. & J., 418, The same case is an express authority for the proposition, that the warranty of soundness in this case was complied with, if the negro woman was alive and sound “at the time of the execution cmd delivery of the order' and receipt,’f and therefore the second objection made by the appellant to the prayer, cannot be sustained. Finding no error in the ruling of the Circuit Court, the judgment will be affirmed. Judgment affirmed..