Nashville union and American. [volume] (Nashville, Tenn.) 1853-1862, 1860-11-21
O.R. Rush vs.. Ira G. BsraeId.

George Johnson sold his whole crop of cotton Of
! 1858, on The 9th December of that year the same
being then all picked out, at 81 60 per hundred
pounds in the seed. to the plaintiff By the terms OF
| the contract the vendee to furnish the wagon
and team, and the vender to deliver the cotton
at the gin weights 500, in debt johnson owed
Bush, and the balance in money when the quantity
was ascertained at the gin. The quantity turned
out to be Y ,645 lbs, and made five bales But be-
fore the delivery of the whole, and when five bales
had been made, and some of them marked with the
initials Of the plaintiff, the defendant an officer
levied an execution against johnson upon it,
WhereupOn this action of replevin was instituted
He failed in this action, upon the ground that the
title was not passed out of Johnson at the time OF
the levy. The verdict of the jury was correct ac-
cording to the law as laid down by the Court as ap-
plcable to the facts of the case And the question
for examination is, whether his Honor was right in
his charge.
he held that property in the cotton would not pass
until the whole crop had been delivered and weigh
ed, unless it shown the part of Rush. that he
had accepted secured the part delivered by some
act Of ownership over it before the levy of the de-
PENDANT. We think this was erroneous.
The delivery of the cotton at the gin of Curvie
where it was weighed and baied, in compliance lut
the contract of the parties, left nothing more to be
done by the vendor and passed the title to the ven
dee. 1t was equivalent to delivery to the pur-
chaser CURVE, by the contract constituted his
agent, to receive and weigh. This would apply to a
part, well as the whole Without the exercise <
any acts of ownership. seemed to be considered es
sential by his Honor, from the Charge he became
owner by the contract of purchase, as soon as the
cotton or any part of it, delivered at the gin
and weighed The ownership, with all risks, was
instantly changed
Kent says, Com, 492, ''when everything the sell
Ter has to do with the goods is complete the con-
tract of sale becomes absolute without actual pay
ment or delivery, and the property and the risk of
accident to the goods vest in the buyer"
a pf turn sold OF
price fixed per hundred weight, to be put into casks
by the vendor, and when this had been done, as TO
part, and was ready for though not delivered, but
set apart for the vendee, and his posa in the
warehouse of the vender. it held that the prop
ery and risk had passed to that part which had been
put up, but not the other. Addison on Contracts.
22G Citing IL; East 2IO. So in in the case before
us, the whole was bought at price fixed for each
hundred pounds and the mode of ascertaining that.
and the place of delivery agreed upon, and five of
the bales actually weighed, and put up in bales.
Must not the same principle govern, and fully
change the ownership to five bales? II they had
been consumed by fire, would not the loss have
fallen upon the purchaser?
The case Of Williams Allen, 10 Humph., 337,
does not cOntraYene this view of the law, but lays
down principles upon authorities cited which clear
ly sustain II. There the contract to take all
the corn in certain pens, at one dollar per bar
rel-the quantity to be ascertained afterwards,
by actual measurement. No time was fixed for the
measurement UT iiieLt Vi pTlCe DelOfe JillS
was DONE a flood came and washed off the corn,
and that court decided that the loss that of the
vendor as the title had not passed. But suppose
of the pens had been measured and delivered to
the purchaser or his agent would not the title to
that have passed? That is the case, and the case
cited in Addison from ii East
We think when the five bales were weighed and
turned off at the gin in pursuance of the contract
the ownership passed out of Johnson to the pur
chaser The charge them is erroneous and the
r. tod 49,
sale was fraudulent being made by the son-in-aw
to the fatherinaw to defraud the creditors of the
former. That will be question for the jury in
another trial upon a correct charge on the other
point. 1t is enough TO say that we no sufficient
evidence of it in this record. CARUTHERs.
Test NJ. D. WEIGH, Clerk.