Smith v. Tobey Furniture Co. , 57 Ill. App. 379 ( 1895 )

Me. Presiding Justice Waterman

delivered the opinion of the Court.

The conditions of sale under which the goods in question ivere purchased do not appear to have been different from those ordinarily attending the sale of personal property.

It is not a matter of right but of favor that shop-keepers deliver goods before they are paid for; and in the absence of an agreement to do so, it is entirely by favor that they send goods out upon approval, or permit a purchaser to exchange for others, goods he has once received.

It would seem that appellee had been so much in the habit of granting these favors, that at this time it felt called upon to give notice that such practice had been discontinued.

The rule it announced was not that no goods would be sold or considered as sold until the price thereof had been paid, but that no goods would be delivered until they had been paid for. That was a mere statement of the rule of law as to sales. A seller is not bound to deliver until he has been paid. This rule does not, hoivever, prevent the making of a binding contract of sale.

An agreement, merely, of purchase and sale having been made, two things are to be done to carry the executory contract into effect, viz.: the purchaser is to pay the agreed price, the seller is to deliver; these actions are to be simultaneous.

In the present case it appears that appellee and appellant made a valid contract of sale; appellee offered to sell certain furniture at certain price; appellant accepted this offer; the minds of the parties met. Each had made a binding promise, and one was an adequate consideration for the other. Appellant insists that there is n-ot in this case “Do ut des facias ut facias, fació ut des or do %tt facias. ” There is, however, a promise for a promise, a promise to pay money, and a promise when this is done, to deliver goods.

Had the appellant tendered the money, appellee would have been bound to deliver the goods. Parsons on Contracts, Vol. 3, 451; White v. Demill, 2 Hall 505; Bablock v. Wilson, 17 Me. 372; Appleton v. Chase, 19 Me. 74. While appellant had expressed an intention to buy $2,000 worth of goods, he had done nothing compelling him to do So. The purchase and sale .of each article was a complete bargain as to such article.

Had appellant paid the agreed price for the halltree, he could have maintained an action of replevin for it; by the bargain the rights of the parties became reciprocal and also respectively enforceable.

The judgment of the Superior Court is affirmed.