Bowers v. Dr. P. Phillips Co. ( 1930 )

I do not think that under this contract, the title passed to the Dr. Phillips Company. The contract was to deliver 5,000 boxes of grapefruit, and elsewhere in the contract it was provided that the fruit should be "merchantable" at the time of picking. Neither of these provisions were, or could be, complied with by Bowers, but this was not the Phillips Company's fault. Under the authorities, the contract was still executory when the freeze occurred and the title to the fruit had not passed, so as to make the loss by the freeze fall on the Phillips Company. Tripp v. Wade, 82 Fla. 325, 89 So. R. 870; 24 R. C. L. 14, 18; 35 Cyc. 274. The seller not being able to deliver the identical property contracted to be sold, in accordance with the terms of the contract, and not having tendered the delivery of similar property in the place of it — if that could have been done under the contract — the purchaser was entitled to the return of the advance payments.