New Orleans Republican. [volume] (New Orleans, La) 1867-1878, 1875-06-24

i
putting them into tina: state in which the
purchaser Is bound to accept them. or, as
1t 1s sometimes worded, into q deliverable
state, the performance of those things
shall, IN the absence Of circumstances in
dicating contrary intention, be taken to
be condition precedent to the vesting of
the property" Second-"Where ANYTHING
remains to be done to the goods for the
purpose Of ascertaining the price, as by
weighing. measuring or testing the goods,
where the price is to depend On the guam
tity or quality of the goods, the perform
aRce Of these things shall also be condi-
tiOn precedent to the transfer of the prop
erty. although the individual goods be as
| certained and they are in the state in which
they ought to be accepted" Third-"When
the buyer is by contract bound to do any
thing as consideration. either precedent
OF concurrent, on which the passing of the
property depends, the property will not
pass until the condition be fulfilled, even
though the goods may have been actually
| delivered into the possession of the buyer
These may be regarded as rules for ascer
tanning tho intention OF the parties. They
are in most cases held to be conclusive
tests: Though not supported by all the de-
! cisions. they certainly are generally ac-
| cepted in England, and by most Of the
courts in this country. And they are the
rules which are applicable to contracts for
the sale Of specific cbattels, contracts which
| define the articles which are the subjects of
| agreement. either single articles or aggre-
! gates separated from others. as the grain in
a bin, the hides in specified vat, ETC., or
+! such case as the present, all the cotton at a
! designated place. A considerable number of
the numerous authorities which Justly these
! rules are collected by Mr.. Bepj amin in his
| Treatise on Sales second edition, pages
| 234 ct seql Applying them TO the contract
Il I.v,I~ -
| not be maintained that the parties intended
| the contract should pass the ownership of
the cotton at once to the buyer without any
ascertainment Of the whole price by weigh
ing; without its complete preparation for
delivery; without any delivery and without
| payment. This is not the ease of an uncOn-
! ditional sale of q specified chattel for an as
certained price. ITS subject was the crops
of cotton lying in Wilkinson county. The
| contract was . cash contract. No credit
was intended. An ascertainment Of the
price by weighing was contemplated,
though it is not stated where the weighing
! should DO done. The vendor undertook TO
| deliver at Fort Adams. He was to deliver
it in bales. Yet all the property vas not in
. deliverable state. Part vas unginned,
unbaled aud nnbagged. The vendor was
and bagging it. and Lobdell was TO furnish
the necessary baggin2. rope and twine.
This was 60 put the cotton into the condi-
tion in which he was bound to receive it,
Tor he was not bound to receive any unlese
the whole vas ginned, baled and bagged.
Tho contract vae entire and the vendor
was not bound 10 put the cotton into q
deliverable state unless Lobdelf furnished
the necessary material. Besides, it was
stipulated that the cotton should be re-
ceived by DaSilva d Co.
Our conclusion does not rest merely on
the ground that the cotton wa, not weighed
or delivered. 1t 10 unnecessary to decide
that weighing the cotton was in this case q
prerequisite to the transmission of the prop
erty. though that appears to be the Law in
England, when by the contract the good.
are to be weighed by the vendor. or by him
coDcurrently with the vendee.
The court here considered the English
and American cases. and proceeded thu>:
We come next to the claim of Mrs. Mutt,
executrix of Haller Mutt, deceased. A
very vigorous argument has been made to
can not be sustained. Assuming that Nuts
contract with Eigee, made in October, 1868,
was not illegal, that it was not in violation
OF the non Intercourse laws, 10 still was not
such a contract as passed the property in
the cotton. The finding of the court is
that in October, 1862 Truman Holmes, Is
agent of Dr.. Mutt, contracted with Elgee
AOT tuo e6lc lfUu ulIN vi SO HuCn VI CNo SlUV
bales OF cotton slowed at Felter's planta
ton, a. he lHones, should get out in
safely to market. for the price OF Els per
bale, TO be paid in Liverpool, tho risk Of
the cotton till got out 60 be on Mr.. Elgee.
That this was bat an executory contract is
very plain. The subject was indefinite It
was not necessarily the 2lQO bales; not Ger
tainly any OF them. 1t was simply go
much Of them az Holmes should get out in
safety to market. The agreement contem-
plated that he might never get out any. If
30, nothing was agreed TO be sold. In
fact, he never did get out bale. What
ever else may be dispensed with, it is
certain there can be no sale of
personal chattels without = specific identi-
tication of the thing sold. Which of the
whole number of bales could the purchaser
say were his9 For which Of them could he
have been compelled Co pay! And there is
no evidence that Holmes ever received the
cotton, or any part of il, or asserted any
possession, though the sale was On credit,
and if the property was his principals, he
was entitled to move it at once to market.
Our attention has been called TO the letter
addressed by Elgee 60 Holmes afterward
which, it is argued. was itself sale. 1t
was dated October s, 1868, and was as fol- |
lows:
DEAR SIR-l. having been agreed on be- !
tween you and myself that l sell to YOU |
all the cotton of Elgee Il Chambers, now
baled and under shed, for the price of els !
per bale. payable in Liverpool, you will |
cause the same to be placed to my credit |
with James A. jackson Il Co. Liverpool.
J. X. ELGEE.
Captain Thurman Holmes, present.
This was not found by the court to have |
been per contract between the parties. It /
refers to the former agreement. and evil
IDENTIFY it was intended az direction where
to pay the price of the cotton, if any should
be got out and if any purchase money |
should become due. 1t had no other pur-
pose. 1t was not even a delivery order
much less can it be regarded as a bill of
sale. And there is no finding that it was
accepted. The only contract, therefore.
the sale Of the cotton to Holmes
upon which the executrix of DR.. Mutt can
rely is that found by the court to have
been made. contract for the sale of so
much of the 2l00 bales as Holmes should
get out in safety to market, and that con. !
tract passed no property in the cotton.
This dispOses of the whole case. The |
IN the cotton was in Elgee, and
neither Of the contracts proved divested
him of his ownership. The result is that his
personal representatives are entitled to a
Judgment for the entire proceeds of the cot
ION held in trust for the owner.
The judgment of the Court of Claims is |
'eversed, and the record is remitted, with
to dismiss the petition of Wood
uf and BOuchard, and Julia A. Mutt, ex.
'cutrix, and to enter judgment in favor of
he personal representatives Of John X.
1lgee, for the sum found in the treasury.
he net proceeds Of the sale of the cotton.
Dissenting. Mr.. Justice Bradley and Mr..
Justice Hunt.
superior District Court.
James b. Cooper vs. Board of Metropoii-
an Police Commis issioners.-P etitioner al.