Sellers v. Licht , 21 Pa. 98 ( 1853 )

The opinion of the Court was delivered by

Lowrie, J.

— The widow of Joseph Licht, before taking out letters of administration, held a vendue of her late husband’s personal property, and sold a eanal-boat to Sellers on three months’ credit, the purchaser to give security for the payment before delivery. About five months afterwards she obtained letters of administration, demanded the price, which was refused, and hence this action.

This transaction may have been a bargain and sale, or a sale and delivery. If the latter, the learned judge was right in saying that, if Sellers did not renounce the sale until her title was perfect and the sale confirmed by her demand of the price, then he was bound to pay. He could not complain of a sale and delivery without title, if the title' was complete when payment was demanded.

But it may not have been a ease of sale and delivery. There was some equivocal evidence that Sellers exercised acts of ownership, but she refused to deliver without security, and perhaps did not deliver, and this fact ought not to have been assumed. The Court ought to have instructed the jury how to treat the case if they found that there was no delivery and no, assumption of possession which she might treat as equivalent. But this view is excluded when the Court says : “ Did he do anything (before administration granted) which evinced an intention to renounce his purchase ? That is the question for you to determine.”

Suppose it a case of bargain and sale merely. Then, for want of title, her contract was broken as soon as made. Eor the broken contract he could demand damages, and she could not demand performance. Especially is it plain that she could not demand performance until she was ready for it and tendered it on her part. But even if she had tendered performance after so much delay, he might have refused to accept it.

Judgment reversed and new trial awarded.