H. S. Morgan & Co. v. Taylor , 32 Tex. 363 ( 1869 )

Lindsay, J.

In this case, upon the trial of an issue formed, as to the right of property between an attaching creditor and one who claimed to be a purchaser, a verdict and judgment was rendered in the court below in favor of the attaching creditor.

The attachment was levied upon cotton at the gin of a third party, where it had been taken by the producer, and was then undergoing the process of ginning and baling, preparatory to being taken to market. Each of the parties to the issue was a creditor of the producer; and in this struggle for the appropriation of the product of the labor of their common debtor, it was a race of diligence, not only legitimate in itself, but which the law favors and rewards by its judgments.

The claimant of the cotton alleged that he had made a contract of purchase with the producer, before the cotton was taken to the gin. The specifications of the terms of that alleged contract of purchase, showed that the producer was indebted to the claimant some $4000 or $5000, and they came to an understanding that the producer was to take his cotton to a certain gin-house in the neighborhood, to be ginned and baled; that the claimant was to supply the baling and rope for the cotton, and when ginned and baled he was to take it to market, sell it, appropriate the proceeds and give the producer a credit on the demand which he held against him for the amount of the proceeds of sale; that the cotton had not then been gathered ; but it was supposed that there woidd be about thirty bales of it. Ho price was stipulated between the parties for the cotton. This is the full extent and scope of the verbal agreement between them, as testified to by the only witness who was present when the understanding took place, so far as the evidence discloses.

Does this state of facts constitute a sale of personal property in law ?

We think it lacks several ingredients necessary to constitute a sale of personal property. There was no agreement upon the price of the article at the time of, or prior, or subsequent to this arrangement, from aught that appears in the evidence. .But the most important ingredient, and one indispensable to constitute a sale of personal property, is entirely wanting. There was no delivery of the property. To make the most of it, it could not be regarded as anything more than a mere executory contract of bargain and sale, for a breach of which the parties might be entitled to their respective actions, sounding in damages, for non-performance. But it did not change the ownership of the property. There was no delivery of the property, either actual or constructive. The property was taken to the gin, as had been understood between them, but it was not delivered to the party with whom the understanding was had, nor to his agent. It was delivered to the owner of the gin, to be ginned and baled. It was a delivery, in fact as in law, to the owner of the gin upon bailment, a bailment for labor and service, in which there were mutual liabilities depending between the bailor and the bailee, which could, not be dispensed with by either, without the consent of both. The owner of the gin testified that the cotton was . delivered to him by the producer, in order that certain labor and service might be done about it by-him; that he received it as the property of the producer, and had no understanding with him that it was to be received as the property of another; that he considered and treated it as the property of. the producer; and at the time of the levy of the attachment, he was engaged in performing and fulfilling the terms of the bailment, which then were incomplete and unfinished. There was not, nor could there be, a delivery to the claimant of the property, until the conditions of the bailment had been fulfilled, unless by the consent of the bailee. The mere marking of the six bales, already ginned and baled, with the initial letters of the name of the bailor, by the agent of the claimant, was no evidence of the assent of the bailee to a constructive delivery to the claimant. On the contrary, it is most persuasive and even stringent evidence of the want of that assent, and the exclusion of all idea of any attempt at a constructive delivery to the claimant. If the claimant had been in fact a purchaser, to make it notorious and manifest, the bales should have been marked with the initials of his own name, as the owner of the property, which would have conduced to show a constructive delivery and the assent of the bailee of the cotton. But there is no evidence exhibited in the transcript of the record which evinces the performance of any act necessary to constitute a sale of personal movable property.

While the cotton was undergoing the process of ginning and baling, under the bailment of the ginner, the general property was in the producer, and there was a special property in the ginner. In this condition its destruction or loss by some inevitable casualty or accident would have been sustained by the producer, and not by the creditor, who, in this case, was only created a factor, or agent of the producer, to sell the cotton; and when so sold, to appropriate the proceeds to the liquidation of his debt, or so much thereof as the proceeds might be sufficient to extinguish. The legal ownership and absolute possession Avas in the producer at the time of the levy of the attachment, Avliile the qualified property and actual occupancy Avere in the bailee, Avho had the right to retain until his particular lien for labor and sendee upon the property was satisfied.

We can perceive no error in the rulings of the court beloAv. The charge to the jury Avas characterized by great clearness and logical precision in expounding the laAV to the jury; and upon the facts adduced in proof upon the trial, the jury were fully Avarranted in the finding AA'hich they made. Wherefore, the judgment is affirmed.

Affirmed.