Conboy v. Petty ( 1895 )

Mt?.. Justice Boggs

delivered the opinion of the Court.

It is a general rule governing sales of personal property and applicable to the sale of a portion of a common mass, that the title remains in the seller until the bargained property is separated and identified, and as long as anything remains to be done by the seller. Parsons on Contract, Vol. 1, p. 527; O’Keefe v. Kellogg, 15 Ill. 347; Frost v. Woodruff, 54 Ill. 155 ; Schneider v. Westerman, 25 Ill. 514,

There is an exception, however, to this general rule, and it is if the mass of property is uniform in kind and quality it is competent for the parties to agree or intend that possession and title shall pass to the buyer, and if they do so agree, or intend as between them, the buyer becomes the owner, and all risks of ownership devolve upon him, Graff v. Fitch, 58 Ill. 373; Wood & Co. v. Roach, 52 Ill App. 388; Stanley v. Robinson, 14 Ill. App. 480.

In the absence of such an agreement or mutual intention, the transaction is a contract of sale, the title and risks of ownership remaining in the seller, and not a consummated sale devolving such risks upon the buyer.

It is not here contended that this case is brought within the exception by an express agreement, but it is urged that it must be inferred from the language employed by the parties and their acts and conduct that they understood and intended that the title to the corn should pass at once to the buyer.

A careful examination of the evidence inclines us quite decidedly to the conclusion that whether the title should pass to, or the risks of ownership be cast upon the buyer did not occur to the parties or either of them, and neither of them had any intent or thought about it.

Various incidents and circumstances proven form the basis of the argument of counsel to the contrary of this view, but the probative force thereof is too slight to be allowed to control, and is, indeed, not inconsistent with the conclusion we have expressed, viz., that neither party thought about, or formed an intent upon the question. It was quite satisfactorily shown that after the- day of the auction sale, and for some time thereafter, several head of horses and hogs belonging to the appellee were fed out of the corn in the crib which was struck off by the auctioneer to Colvin, and appellant’s intestate. It is true appellee denied that he so appropriated the corn to his own use, but he admitted that his boy might have done so, though he insisted he had directed the boy not to feed that corn. But it was proven that appellee, after the day of the auction sale, until, and at the time of the fire, lived upon the farm where the corn in question was raised and stored in the crib, and there kept the stock in question, and that the stock was fed in corn, and that he had no corn other than that in this crib.

This circumstance militates strongly against the theory that the appellee intended that title should pass. Other circumstances proven, but which need not be mentioned, add much force to the same conclusion.

Moreover, it seems apparent that the jury did not base their verdict upon a finding that the parties had agreed or intended that possession or title should pass.

The evidence of the appellee, which was not in this respect contradicted, showed that there was 850 bushels of corn remaining in the crib after Colvin had taken out the 200 bushels bought by him. It was shown, without dispute, that appellant’s intestate was to pay thirty-six cents per bushel.

The verdict, if for the plaintiff, should have been for $306. It was for $153, exactly one-half the true amount to which the plaintiff was entitled, if entitled at all.

It is not unreasonable to conclude that this verdict was the result of the inability of the jury to decide the controlling question of fact upon which the rights of the parties rested. The cause should be again heard.

The judgment is reversed and the case remanded.