Screws v. Roach , 22 Ala. 675 ( 1853 )

GIBBONS, J.

The sole question presented by the bill of exceptions is, whether or not the title to the cotton for the recovery of which the suit is brought, vested in the plaintiff by the execution and delivery of the,bill of sale.

It may be stated as a general rule, in contracts for the sale of chattels, that where the contract is complete in all its parts, and nothing remains to be done by either party, in order to ascertain the identity of the thing sold, the quality, or the price, the title to the property vests in the vendee by the contract itself. '■ But if something yet remains to be done at the time the contract is made, either to determine the identity of the thing sold, its quantity, or the price, the contract, until .these things are done, is considered to be executory in its character, and the title does not vest in the purchaser. Chitty on Con. 255; Long on Sales 267; Magee v. Billingsley, 3 Ala. 679; Batre v. Simpson, 4 Ala. 305.

Applying these principles to the contract under consideration, it will readily be perceived, that the decision of the court below was correct. The contract is for the sale of cotton, the greater part of which is ungathered, and standing in the field. It has to be picked, ginned, weighed, and hauled to a particular place specified in the contract, before it is to be delivered. The contract is undoubtedly executory in its character, and not executed. It could not be pretended, we apprehend, that if the cotton, after it was gathered and in the gin house, had been burned or destroyed by accident, the loss would have fallen upon the plaintiff; and if it would not, it would be for the reason that the title had not yet vested in him by the agreement. Batre v. Simpson, supra.

The judgment of the court below is affirmed.