Lownsdale v. Hunsaker ( 1864 )

Boise, J.

One defense relied on by the appellants, defendants, is that this, contract is a complete bill of sale of the property named in it, and that by it the ownership and title to the property became vested in Hunsaker at the time of its execution, and that he and those claiming under him had a right to take the cattle and horses without the consent of Lownsdale, and consequently it was no trespass for Hunsaker or those claiming under him to take them. The question is therefore on the construction of this contract.

The court below held that the contract was not a bill of sale, but a contract for a sale; and that by it the propéi’ty did not pass out of Lownsdale. This court is of the same opinion as was the court below. I think it is clear from the terms of this contract that, if after its execution, any of the cattle or horses named in it had died, the loss would have fallen on Lownsdale ; that by the contract there was no delivery of the property, but, that delivery was contemplated at a future time. This was merely a contract for a sale, and if Lownsdale failed to comply, the remedy of Hunsaker was by suit on the contract. There were other questions raised in this case but they are unimportant.

Judgment affirmed.