Harvey v. St. Louis Butchers' Joint Stock & Benevolent Ass'n

Holmes, Judge, delivered the opinion of the court. The plaintiff sues for the price of a herd of cattle, sold and delivered to the defendants. It appears that the defendants’agent went to the farm of" plaintiff in'Pettis county, examined the cattle and bargained for the whole herd. The [217] price and number of the cattle were agreed upon, and they were to be driven by the plaintiff to Dresden, a station on the Pacific railroad and delivered into the cattle pens at that place, on or before the last day of September, unless the defendant came for them before that time, and they were driven by the plaintiff’s agent to Dresden, and put into the stock pens on that day, but there was nobody there to receive them on behalf of the defendants, and they were driven away again to a herding place by the same agent. The cattle remained in the possession and control of the plaintiff or his agent, as it would seem, until they were captured by hostile forces and lost. There was no memorandum in writing; no part of the price was paid, and there was no actual change of possession at the time. The cattle were never actually delivered into the possession of the defendants, or of any agent of theirs who was authorized to receive them in their name. The statute provides that no sale of goods shall be valid unless the buyer shall accept part of the goods so sold and actually receive the same — Rev. Stat. 1855, p. 809, § 6. The goods must not only be accepted, but actually received. An acceptance ascertains the identity and quality of the goods sold, and the receiving of them changes the possession. The question here is not so much of an acceptance as of a delivery and receipt of the cattle. The number and quality of the cattle were sufficiently ascertained, but there was no delivery of possession. Mere words were not enough for the purpose. There must be some unequivocal acts of acceptance and actual receipt of the property — Kirby v. Johnson, 20 Mo. 354; Shepherd v. Pressey, 32 N. H., 49; Shindler v. Houston, 1 Comst. 261; Meredith v. Neigle, 2 El. & Black. 363; Morton v. Tibbett, 15 Adolph & El. (N. S.), 428; Cusack v. Robinson, 1 Best & S., 297; Matthews v. Harris, 3 Jur. 1192; Cunningham v. Ashbrook, 20 Mo. 553. A delivery of possession necessarily implies a change of the dominion and control over the property. Without an acceptance and receipt there can be no such thing as a de [218] livery. In the case of cumbersome articles, not admitting of strict mamial delivery, symbolic acts which clearly signify that the dominion and control over the property has been actually transferred from the vendor to the vendee, may sometimes be sufficient, as it was held in Bass et als. v. Walsh, write p. 192. A drove of cattle is a thing that ordinarily implies the inevitable care and control of some persons in whose charge they are. These cattle continued to be in the charge and control of the person appointed by the plaintiff as' his agent to drive them to the place named, and then deliver them to the buyer. They never passed out of his possession into that of the defendants, or of any agent or servants of theirs. The vendor’s lien was never _LosA The terms of sale were cash on delivery. It is not probable that the vendor intended that the property should pass beyond his control until the matter of payment was arranged to his satisfaction. When no person was found at the place of delivery to receive and pay for the cattle, they were driven away .and herded elsewhere by this same agent of the plaintiff. There was no evidence on which it can be maintained that this person was constituted or had become the agent of the defendants. No connection between him and them was shown. In Williams v. Evans’ Adm’r, ante p. 192, the personal dominion of the vendor over the slaves sold had been surrendered to the vendee, and the jailor in whose actual charge they were, with the understanding of all parties, had been constituted the agent of the vendee, and became the custodian of the property on his behalf. That the plaintiff here may have considered that the defendants would be chargeable with the expense of keeping the cattle after the day named for delivery, or even before, would be nothing to the purpose. Nor would it have made any difference if the defendants had been privy to that understanding — Kirby v. Johnson, 20 Mo. 354. It would have answered merely to another condition on which only a delivery would actually be made by the vendor, at a subsequent time, or at another place at his option. In Doorley v. Varley, 12 Adolph & El. [219] 632, there was a change of possession and an actual receipt of the goods. The property is in transitu while it remains in the possession of the vendor — 6 Barn & Cr. 422. It appears that the defendants had intended to transport the cattle on the railroad, had engaged cars, and had provided hay for their keeping. It does not appear that the railroad company was to receive the cattle into the charge of their agents on behalf of the defendants, whether at the cars, or at the stock pens, nor that it was the practice- of the company to do this in any case. The evidence goes no further than to show that the defendants had intended to receive them at the stock pens for transportation on the railroads under their own charge and control. But neither they nor any agent or servant of theirs was there on that day to receive them at all, and they were not received. In Cusack v. Robinson, 1 Best & Smith, 297, the goods were received at the warehouse appointed by the defendant into custody of his own agent, and were delivered out again upon his order. There was clear evidence of an acceptance and actual receipt of the goods in Matthews v. Harris, 3 Jur. 1192. The goods were delivered at the Plough Inn, where the defendant was to receive them, and where he boarded, to one of the servants at the inn, who actually received them, and might therefore be deemed and was deemed to be the servant of the defendant for that purpose. There clearly was no such delivery and receipt in this case. The plaintiff never parted with the possession of the property to any agent or servant of the defendants. His personal dominion over the cattle in charge of his own agent still continued as before. The whole case depends upon this question. Now there can be no delivery but to some person. The personal dominion over the property must be transferred from the vendor to the vendee. If there had been any agent of the defendants at Dresden, or any person at the cattle pens, whether the servant of the defendants or of the railroad company, who was authorized to receive the cattle on behalf of the defend [220] ants, and if any such person had actually received them into his own charge and control for the defendants, there could have been no doubt about an acceptance and receipt, and an actual delivery. Nothing of this kind was done, and we are of the opinion that there was no sale within the meaning of the statute of frauds. It follows, from this view of the case, that the defendants’ instructions should have been given, and the plaintiff’s instructions refused. Judgment reversed and the cause remanded. The other judges concur.