Bowden v. Gray , 49 Miss. 547 ( 1873 )

Tasbell, J.,

delivered the opinion of the court:

Assumpsit to recover the value of a' bale of cotton. Damages are laid at $250.00. Verdict for plaintiff, $91.64, with interest from September 15, 1862. A motion for a new trial was overruled.

The cotton in controversy was raised in 1861 by the joint labor of G. A. Gray, plaintiff, then Z. A. Saunders, and her then husband, Robert Saunders, since deceased, on the land of the latter, with two other bales, the three bales having been raised, gathered, ginned, and stored together. Mrs. Gray, then Mrs. Saunders, testified on the trial, that, she was to have one bale. No specific contract is shown, beyond the simple declaration of the party, that she was to have one bale. There was no separation of the one bale from the other two. Nor was there any delivery of the bale, or designation of the one belonging to, or claimed by, the plaintiff. The foregoing are the facts on which the case must be solved.

There was a large amount of conflicting testimony as to the value of cotton in 1862; whether the plaintiff had not been, paid in full, to her satisfaction, for the cotton; numerous declarations and conversations of Saunders in his lifetime, with reference to this cotton and also statements and conversation of defendant. But, in the view taken of the case, it is wholly unnecessary to analyze the evidence on these disputed points. . However gratifying it might be to sustain the claim of a female, when founded in justice or equity,, nevertheless the law and the facts of the case at bar admit of no discretion.

Unquestionably, the cotton in controversy, raised as it was by the joint labor of the husband and wife, under the circumstances detailed,-belonged to the former.

The .Code.of 1871, § 1778 secures to the wife “the fruits of her personal service;” but the case at bar is concluded by the law.as it stood in i 857. Code of 1857, p. 335, § 5, arts. 23-32; Apple et al. v. Ganong et al., 47 Miss., 189, is decisive of this point. See also Henderson v. Warmack, 27 ib., 830; Sharpe v. Maxwell, 30 ib., 589 ; Armstrong v. Armstrong, 32 ib., 279, under the statute of 1839.

It will not be denied that, by proper separation and delivery, the title of the wife to the bale of-cotton, subject to the claims of creditors, might have been perfected, but, unfortunately, there are wanting the most material elements of title. The cotton, as already stated, was raised on the land of the husband, by the joint labor of himself and wile. She was to have one bale, but her bale was never indicated or set apart.

The general doctrine, deemed to be applicable to the view of the case last suggested, is substantially this, that, when anything remains to be done by either or both the parties, precedent to the delivery, the title .does not pass; provided, such remaining acts are elements of title. And so inflexible is the rule, that when the property has been delivered, if anything remains to be done by the terms of the contract, before the sale is complete, the property still remains in the vendor. Parker v. Mitchell, 5 N. H., 365; Ward v. Shaw, 7 Wend., 404. The contract must be executed to effect a complete sale. Hutchins v. Gilchrist, 23 W., 88. The general rule in relation to the sale of personal property is, that if anything which enters into and constitutes an element of title, remains to be done by the seller before delivery, no property passes to the vendee, even as b.etw'een the parties. Hale v. Huntly et al. 21 Vt., 147; Chit, on Con., 396. The point under consideration may be illustrated by supposing this action instituted to recover the value of a horse. Suppose Saunders had been, in .1861, the owner of three horses. He joined the army in 1864. Suppose, before his departure, he had promised his wife a horse. Mrs. Saunders became a widow, and brought this suit in 1866. Suppose the horses to have been kept together, without designating which of the three was given to the wife, until 1862, when they were sold in the bunch. In such a case, could an action be1 maintained by the wife or widow for one of the horses, against the purchaser? The answer must be in the negative; and yet the case at bar is precisely like the one supposed. Here was a promise to the wife that, as a reward for her labor, she should have a bale of cotton ; yet it was never designated and set apart to her, in which respect this case is distinguishable from many cases where the title passes without deliver,, . It is not deemed necessary to discuss and classify the cases. Vide, Stamps v. Bush, 7 How., 255; Jordan v. Harris, 31 Miss., 257; 2 Story on Contracts, § 800, and notes cited; Evans v. Harris, 19 Barb., 416; Austin v. Craven, 4 Talbot, 644; Outwater v. Dodge, 7 Cow., 85; Woods v. McGee, 7 Ohio, 128 ; Riddle v. Varnum, 20 Peck, 280; Hunter v. Hutchinson, 7 Barr., 140; 6 East, 614; 12 ib., 614; 11 ib., 210; 5 Taunt., 176 ; ib., 617; 1 ib., 548; 2 Comp., 240; 3 B. & Ald., 321; 4 Comp., 337; 13 Pick., 182; 21 ib., 378; 4 Foster, 347 ; 2 Story on Con., § 801, et seq.

Judgment reversed and cause remanded.