#### T. W. HUNT, et al., v. KELLUM & ROTAN.

SUPREME COURT,

AUSTIN TERM, 1883.

*Sale of Goods*— Presumption.—If at the time of making sale of goods there is no understanding when the consideration is to he paid, the presumption of law then is that it was an unconditional sale, taking effect immediately, and not dependent for its completion on any condition whatever.

*Damages*— Attachment—Where the plaintiffs sell all their stock of goods, and after such sale cease to he merchants, they have no reputation as such to he injured hy the attachment of the goods sold, consequently they cannot recover damages for injury hy attachment to such alleged reputation.

*Anderson &*Flint, for appellant.

Appeal from Bosque County.

Appellees, who were plaintiffs below, brought suit against appel. *139lants, defendants below, by petition, for a debt alleged to be due, for three hundred and eighty-eight dollars and twenty-five cents($388.25) and sued out au attachment, and alleged as grounds of attachment that appellants “had disposed of their property in part with intent to defraud their creditors.” Appellants pleaded a general denial, and, in reconvention:

1st. That there was no probable cause — that appellees' affidavit for attachment was false, and that the writ was levied on appellants’ goods of the value of 83,000, which was excessive.

2d. That appellees sued out the attachment maliciously, without cause, with intent to injure appellants.

3d. That appellants were of good commercial credit, and that such credit had been ruined by plaintiffs suing out the attachment, and prayed for damages.

The jury rendered verdict simply for amount of plaintiff’s claim, and judgment accordingly, foreclosing lien.

In appellant’s first plea in reconvention they set out specifically that they had been for a long time merchants and had good credit, and as their customers had been by reason of failures of crops unable to pay them for goods sold in 1881, they deemed it best for their creditors to sell out and not incur further debts; and as they owed one IT. M. Middlebrook about $800, they bargained their stock of goods to him and agreed to take their note for the above amount, which Middlebrook held, in part payment, and the remainder Middle-brook was to pay in good notes for land, secured by vendor’s lien and by him endorsed. That the sale was openly and fairly made, and appellees, Kellum & Rotan, were informed of it by appellants as soon as it occurred, and before they sued out their attachment. That the goods had been placed by mutual agreement of appellants and Middlebrook in possession of J. N. Porter, to be held by him until Middlebrook delivered the notes and they were ascertained to be good and fully secured by the liens. That this occurred about 10th of May, 1882, and that on 20th day of May, 1882, appellees caused them to be attached before the notes had been presented to J. N. Porter.

Appellants moved for a new trial on grounds that the court erred in its charge, and that the jury found against the law and evidence of the cause, stating specifically the errors in charge and verdict.

*140This motion was overruled and notice given of appeal, which was perfected.

Opinion by

Willie, C. J.

The charges of the court complained of in the 1st and 2d assignments of error submitted to the jury the sale made by appellants to Middleb ook under two aspects: First, as an unconditional sale, where a part of the consideration had been paid by the purchaser; and, secondly, as an executory contract where a condition precedent had been partly fulfilled by the party bound to its performance.

In the first case the court held that the title to the goods sold passed to the purchaser immediately; in the second that the vendor was deprived of his title by failing to rescind the contract and place the vendee in the same condition as before the sale within a reasonable time, and before it had been placed beyond his power to comply with his part of the contract.

These are undoubtedly correct principles of law, and they do not seem to be disputed. The complaint is that the facts of the case did not justify them. There was much conflict of testimony as to the facts surrounding the sale made by appellants to Middlebrook. In such cases, if there be sufficient testimony to warrant the charge of the court we cannot reverse, if the charge announces correct rules of law.

The court in this case adopted its charge to every phase of the evidence, and in effect instructed the jury as to what they should do, if they believed the state of case to exist as made by the proof of appellants, and what they should find if they gave credit to the evidence of the appellees. It is apparent that they believed the witnesses of th,e latter, and it is in its application to the state of facts made by them that we must consider the charge of the court.

It plainly appears from this evidence that at the time of .making the sale of the goods by Hunt *&*Co. to Middlebrook, there was no understanding as to when the consideration was to be paid. The presumption of law then is that it was an unconditional sale, taking effect immediately, and dependent for its completion on no condition whatever.

Benjamin on Sales, secs. 311, 315.

Again the trade for the goods was made by Hunt and Middlebrook in person and acting for themselves. Ford was afterwards sent by Middlebrook to receive the goods for him, and to see to their in*141voicing and delivery; and it seems to make, a payment on the consideration money. He did receive the goods, and paid a large portion of the consideration, and had shipped a large quantity of the goods to his principal before anything was said about securing the unpaid balance.

It is a principal perhaps as old as the common law itself that where there is no understanding to the contrary, a sale of personal property is completed by a payment of all or a portion of the purchase money, or when the purchaser by agreement takes the tiling sold into possession.

She]). Touch., p ¿24.

Tn this case, Ford, as agent of Middlebrook, without any previous understanding to the contrary, not only received possession of the goods, hut paid a large part of the consideration agreed to be given for them.

After flie completion of the salt* in manner as stated, Hunt became uneasy about the balance ol the consideration, and it was agreed between him and Ford that enough of the goods to meet the balance thus unpaid should be turned over to Porter as trustee, to be delivered to Middlebrook when he paid for them as per agreement. The object of this as appears from Ford’s testimony was to secure the payment of the balance due from Middlebrook on the trade. The effect was to make the transaction a pledge of the goods to secure a debt due from Middlebrook to Hunt.

This was the object which Hunt sought to obtain. The goods were in possession of Middlebrook through his agent, and were not returned to Hunt, but were sent to the same storehouse, where they were originally directed to be sent for Middlebrook’s benefit. They were, in effect, placed there by himself, not for redelivery to Hunt, but to be held by a trustee until Middlebrook should redeem them by paying the amount due for their purchase.

The original right to the goods obtained by reason of the sale, delivery and part payment of consideration still existed in Middle-brook. His rights to possession of them as against the trustee was alone suspended. The sale was as complete as if the unpaid balance of the consideration had been secured by a pledge or hypothecation of other property.

It was no more than a sale upon a credit as to this balance of the *142goods, and if they had remained in the hands of Hunt himself, he would have had only a lien on them for their price.

1 Parsons on Con., p. 526, and authorities cited.

Martindale v. Smith, 1 Q. B. 395.

We think the charge complained of in the first assignment of error was warranted by the evidence; but considered as a conditional sale we think that under the circumstances of this case the condition was waived, and the property in the goods as between Hunt and Middlebrook passed to the latter. A part of the purchase money was paid; possession of *the*property was delivered to a third party to be delivered to Middlebrook upon performance of certain acts by him.

Hunt had the power to do one of two things: confirm the trade and sue for the balance due, or rescind it and reclaim the goods. If he proposed to do the latter, he must restore what he had received and replace all parties in their original situation. Moreover, he must do this within a reasonable time, and whilst the situation of the parties remained so far unchanged that they could be restored to their first position.

Webb v. Stone, 24 *N.*H. 282, 288.

To place the parties in their original condition here, that part of the consideration received by Hunt should at least, have been offered to Middlebrook, and the goods should have been in such condition that they could have been returned to Hunt; but the levy of the attachment prevented the latter, and no offer to return the note received in part payment was ever made, but the note was cancelled and destroyed by Hunt. He, by his own act, incapacitated himself from restoring the note, and made no offer to supply its place witli anything else.

We think the charge of the court complained of in the 2nd assignment of error is also correct. The third assignment of error is not well taken. The financial condition of the purchaser does not change the rule of la w. The vendor is as much bound to restore to an insolvent the purchase money received from him, and otherwise place him in the same condition he was in. before the trade, as he would one in solvent circumstances.

As to the fifth error assigned, it is sufficient to say that it is difficult to see how Hunt could recover for damages caused by the seizure of the goods if they belonged to Middlebrook; and as for the *143damages to the reputation of appellants as merchants, the proof shows that the goods sold to Middlebrook constituted all their stock, and after the sale they ceased to be merchants, and had no reputation as such to he injured by the attachment of the property. The other assignments of error are too general to claim our attention, but if we could consider them they disclose no errors for which the judgment should be reversed.

There is no error in the judgment and it is affirmed.