Sanborn v. Shipherd

Mitchell, J. This was an action to recover the possession of certain personal property alleged to have been wrongfully detained by defendant. The undisputed evidence is that the parties entered into a contract for the sale of the property by defendant to plaintiff for $200, of which the plaintiff paid $2.50 at the date of the contract, and was to pay the balance of $197.50 on the evening of the same day; that upon the return of plaintiff he demanded the delivery of the property without paying the $197.50, on the ground that in the meantime he had been garnished. The defendant offered to deliver the property on payment of the $197.50, but refused to do so without it; hence this action. The $197.50 never has been paid or [146] tendered. Nothing was said in the contract of sale as to its being on credit, and there was nothing from which a credit could be implied. There may, perhaps, be some conflict of evidence as to whether defendant was himself the owner or merely the agent of the owner of the property, having charge of it with authority to sell; but which he was is wholly immaterial in this case. How, on this state of facts, it could be found that plaintiff was entitled to the possession of the property we are wholly at a loss to conceive. There being no agreement of the parties to the contrary, the law presumes the sale to have been for cash; and, upon a sale for cash, payment of the purchase money and the delivery of the property are concurrent and mutually dependent acts. Neither party is bound to perform without contemporaneous performance by the other. The payment of the purchase'money was a condition precedent to plaintiff’s right of possession. The fact that some third party had attempted to garnish the purchase money in the hands of the plaintiff could not alter the contract of the parties. We do not mean to be understood as intimating that, in the case of an executory contract for the sale of personal property, replevin will lie where the purchase money has been tendered, but refused. But in this case there was not even a tender. Judgment reversed and new trial ordered. Gilfillan, C. J., absent on account of sickness; took no part. (Opinion published 60 N. W. 1089.)