Portland Seed Co. v. Clark , 35 Idaho 44 ( 1922 )

RICE, C. J.

This is an action for damages for the conversion of clover seed. Appellant bases its title and right to possession upon the following contract:

“PORTLAND SEED COMPANY,

“Portland, Oregon.

“Date: Sept. 28, 1918.

“Bought of: Tom Clark.

“Postoffice: New Plymouth.

‘ ‘ Shipping Sta.: Emmett.

“Terms: $400. Balance F. O. B. Cars.

“Date of Shipt. - Via. -

“All conditions of sale must be expressed in writing. No verbal agreements recognized.

“This contract is for about two tons of red clover seed, or all he has on the 40-aere tract across the river. This seed is to be recleaned and in good seamless bags at 28^ per lb. And loaded when threshed and shipped to Portland.

“PORTLAND SEED COMPANY,

“By H. G-. Rogers.

“Price, terms and sale confirmed, and receipt of $400 dollars, part payment, on above is hereby acknowledged, “Date: Sept. 28.

“By TOM CLARK”

This was an executory contract of purchase. At its date the clover seed was growing in the field. The seller was required to harvest, thresh, reclean and sack the seed, load the same on ears and ship to Portland. Until all these requirements were complied with by the seller title would not pass. The trial court so found. (Brown v. Herrick, 34 Ida. 171, 200 Pac. 117; Mark P. Miller Milling Co. v. Butterfield-Elder Implement Co., 32 Ida. 265, 181 Pac. 703; Clinton Sheep Co. v. Ogee, 34 Ida. 22, 198 Pac. 675; Hamilton v. Gordon, 22 Or. 557, 30 Pac. 495; Kenney v. Grogan, 17 Cal. App. 527, 120 Pac. 433; Hughes v. Wiley, 36 Kan. 731, 14 Pac. 269; Williston on Sales, p. 4 04, sec. 280. See, also, Carlson v. Crescent etc. Box Mfg. Co., 20 Ida. 794, 120 Pac. 460.)

The appellant did not show title or right to possession of the clover seed, and cannot maintain this action. (Mark P. Miller Milling Co. v. Butterfield-Elder Implement Co., supra; Clinton Sheep Co. v. Ogee, supra.)

It is unnecessary to consider the other assignments of error.

The judgment is affirmed, with costs to respondents.

McCarthy and Dunn, JJ., concur.