Mobile Savings Bank v. Fry , 69 Ala. 348 ( 1881 )

STONE. J.

It is contented for appellee that we can not •consider the first charge noted in the bill of exceptions as asked •and refused, because tie record fails to show it was moved for in writing. The corrected record certified in response to a certiorari, contains a second copy of the bill of exceptions, and it fails to affirm that.the charge was asked in writing. Governed alone by the bill of exceptions, we would presume the charge was refused because not moved for in writing. — S. & N. R. R. Co. v. Seale, 59 Ala. 608.

There is an agreed amendment of the record, made to obviate the necessity of a certiorari, by which it appears, that charges ■corresponding to those copied in the bill of exceptions were asked in writing, and the presiding judge wrote on them severally “ refused,” and signed his name thereto. This constituted them a part of the record, and thus proves that they were asked in writing. The bill of exceptions comes to their aid and shows that a proper exception was reserved to the refusal. The case is thus brought within the statute and our rulings, which require •that, to authorize revision, charges moved for and refused must be shown to have been asked in writing. —Code of 1876, § 3109.

When there is a contract of sale of merchandise or chattels, and any thing necessary to individualize the thing sold, such as weighing, measuring, counting, or separating from a bulk, remains to be done, the title does not pass, because the thing sold is not susceptible of identification. A thousand pounds to be weighed from a larger bulk, an hundred bushels to be measured from a crib or heap containing a larger quantity, fifty sheep to be counted from a larger flock, are all examples of executory contracts. In such cases the title has not passed to the purchaser, and he can not maintain the action of trover or detinue. The reason is, the property is not specified, and the alleged purchaser can not know or assert which is his. Benj. on Sales, § 346 and note; Magee v. Billingsley, 3 Ala. 679; Fucker v. Henderson, 63 Ala. 280.

The first charge asked by defendant fairly postulates a phase ■of tlie testimony, asserts a correct legal principle, and should have been given.

Beversed and remanded.