Southern Railway Co. v. Spragins , 131 Ala. 319 ( 1901 )

TYSON, J.

The only change in the original contract claimed by plaintiff, was that of the consent by the defendant to substitute pin oak ties for those specified in the original. It is not contended that the provisions of the contract were modified or otherwise disturbed in any other respect. On the contrary it was conceded that it was not. One of the terms of that contract was, that the ties were to be inspected before acceptance by defendant and until accepted they were to be at the owner’s (plaintiff’s) risk. It is undisputedly shown by the evidence that defendant declined to inspect or accept the ties, the contract price of which is sought to be recovered in this action. The complaint contains only the common counts. A breach of the contract for refusing to inspect or accept the ties is not declared on. To •support this action the plaintiff must prove such a delivery as will vest the property in the ties in the defendant, and it must be such a title to them in defendant as would entitle it to maintain trover for them against the plaintiff without offering to pay him for them. — 2 Ency. PI. & Pr., 1005, 1006 and note 1 on last page cited. It is too clear for argument that until acceptance by the defendant of the ties, by the express terms of the contract they were plaintiff’s property. “The remedy for not accepting is on the agreement.” — Mixer v. Haworth, 21 Pick. 207.

The affirmative charge requested by defendant should have been given.

Reversed and remanded.