Paulson v. Lyon

MoCAETY, J., after stating the facts, delivered the opinion of the court. Eespondent contends that, as the appellant made no motion for a new trial, he is. not entitled to a review of any of the alleged errors occurring at the trial, nor can he question the sufficiency of the evidence to support the findings of fact or judgment. Section 9, article 8, of the Constitution of this State, provides that “from 1 all final judgments of the district courts there shall be a right of appeal to the Supreme Court. The appeal shall be upon the record made in the court below, and under such regulations as may be provided by law. ’ ’ Chapter 27, p. 25, Sess. Laws Utah 1901, provides as follows: “Upon an appeal from a judgment, all orders, rulings and decisions in the action or proceeding to which exceptions have been taken in the court below, or which are deemed excepted to as provided by this Code, are before the Supreme Court for review, and in equity cases any question of fact, shall be reviewable by the Supreme Court without a motion for a new trial, and in all cases at law tried before the court without a jury, all questions of errors in findings of fact and conclusions of law legally reviewable by the Supreme Court, shall be before the Supreme Court, for review [442] without a motion for a new trial, and either party to-the appeal may assign any errors in findings of fact or conclusions of law, or that any findings of fact by the court are not supported by evidence, on appeal to the Supreme Court, without filing a motion for a new trial in the court below;” it will be observed that the provisions of section 9, article 8, Constitution, provide that appeals to this court shall be upon the record made in the district court, and the Legislature is given power to provide by law the manner or mode of procedure by which the record may be made up and brought to this court for review. As section 1, c. 27, p. 25, Sess. Laws 1901, in no way conflicts with the provisions of the Constitution, therefore the appellant is entitled to have the case reviewed to the same extent as though he had made a motion for á new trial, and the same had been overruled. The case of Thompson v. Hays, 24 Utah 275, 67 Pac. 670, and other decisions of this court relied upon by respondent in support of his contention on'this point, were appealed before the foregoing statute became a law, and hence do not control in this case. The contract under consideration expressly provides that the goods shall be paid for on delivery. The wéll-established rule is that where goods are sold, 2 to be paid for on delivery,, as was done in this case, the payment is a condition precedent to passing title, unless such payment is waived at the time, or subsequent to the delivery of the goods. 6 Ency. Law (2 Ed.), 456; 1 Mechem on Sales, 538; Dudley v. Sawyer, 41 N. H. 326; Leven v. Smith, 1 Denio 571; Hammett v. Linneman, 48 N. Y. 399; Daugherty v. Fowler (Kan.), 25 Pac. 40, 10 L. R. A. 314. ‘ ‘ To constitute a waiver, 3 there must not only be a delivery, but an intent not to insist upon immediate payment as a condition of the title passing, ’ ’ Globe Milling Co. v. Minneapolis Elev. Co., 44 Minn. 156, 46 N. W. 306; Mechem on Sales, 552. The important question in this case is, does 4 the record show such intent, or a state of facts from which the intent could be reasonably inferred? The [443] record shows that, immediately after the goods were put in respondent’s store and were ready for use, appellant demanded payment, and for nearly a month thereafter made repeated demands on respondent for the purchase price, and, without any unreasonable delay, commenced an action to recover the property. We have made a careful examination of the record, and fail to find any evidence whatever that tends to support the contention that Paulson said or did anything from which it can be inferred that he intended to relinquish his title to the property before it was paid for in full, or that Lyon understood that the title had passed to him. In fact, Lyon himself testified that he only accepted the goods temporarily, and nowhere in the record does it appear that either Paulson or Lyon at any time regarded or treated the sanie as absolute and unconditional. If there were any evidence whatever to support the foregoing findings, we would not disturb the judgment; but as the evidence is all one way, and shows that Paulson never waived payment or relinquished his title to the goods, the case must be reversed. It is ordered that the cause be reversed and remanded for a new trial; the costs of this appeal to be taxed against respondent. ' BASKIN, C. J., and BARTCH, J., concur.