Cole v. Bryant

Cooper, C. J., delivered the opinion of the court. The third instruction for the defendant should not have been given. There is no evidence in the record showing a delivery of the staves by Horton to Bryant before the contract between Cole and Horton (whatever may have been its nature) was entered into. True, Horton says he had delivered the staves to Bryant under his contract with him, but he states precisely what was done, and what was done did not constitute delivery. He carried the staves, it is true, to the place where delivery was to be made, but this was no delivery, for the staves were not received or accepted by Bryant, who, under his contract of purchase, had the right to ‘ ‘ inspect and cull ’ ’ them. He went to Okolona to inspect, cull and receive them, and when he got there, found that the contract with Cole had already been made. Neither possession nor title passed under the executory contract between Horton and Bryant when the staves were put ‘‘ on the side track of the Mobile & Ohio Railroad at Okolona. ’ ’ That was the place they were to be put for delivery, but putting them there was not delivery under the contract. Berry v. Waterman, 71 Miss., 497. Reversed and remanded.