Harmon v. Goetter, Weil & Co. , 87 Ala. 325 ( 1888 )

STONE, C. J.

This action counts in detinue; being brought by the appellees against the appellant, for the recovery in specie of certain described articles of merchandise.

1. The goods were sold to the vendors of the defendant by the plaintiffs, upon the condition that the price therefor was to be paid upon the receipt of an invoice of the goods. This rendered the transaction between the plaintiffs in this action and the sellers of the defendant, a sale for cash. Until the fulfillment of the condition — the payment of the price of the goods — the sale was not completed, and the title to the goods .remained in the plaintiffs. The payment of the purchase-money was a condition precedent to a consummation of the trade; and until such payment, the title to the goods never passed out of the seller, and no right of possession accrued to the buyer. Harmon Brothers, tbe vendees of the plaintiffs and the vendors of the defendant, totally failed to comply with the condition of the sale. Hence the ti.tle to the goods, and the right of possession, never passed out of the plaintiffs, which gave them a -right of action for the recovery of the goods. —Sumner v. Woods, 67 Ala. 139; Holman v. Lock, 51 Ala. 281; McCall v. Powell, 64 Ala. 254; Jones v. Pullen, 66 Ala. 306; Fairbanks v. Eureka Co., 67 Ala. 109; Shines v. Steiner, 76 Ala. 258; 1 Benj. on Sales, § 425.

2. There was no error in the admission of evidence relating to the sending and receiving of the invoice. As the receipt of the invoice was the time when the purchase-price fell due, it was competent to prove the sending and the reception of the invoice, in order to show that the sellers had performed their part of the contract, and that the purchase-money was due.

3. The evidence of the defendant, tending to show his attempt to sell the goods uo other merchants in Union Springs, and that he was only offered a certain price for them, was irrelevant to the issues involved, and therefore incompetent. The- sale of the goods from Harmon Brothers to J. E. Harmon, the defendant, was not attacked for fraud. The bonajides of the transfer to the defendant not being assailed, this evidence was wholly irrelevant.- — 1 Green! Ev. (14th Ed.), § 49, note.

4. The testimony of the witness Goldman, as to the declaration of the sheriff, was competent evidence, as tending to prove an admission, implied from silence, on the part of the defendant, that the goods were still in his possession. The defendant’s motion to exclude this evidence from the jury was properly overruled.

There was no error in the court giving and refusing the charges set out in the record.

The judgment is affirmed.