McCraw v. . Gilmer

Ashe, J.

This court' cannot take into- its consideration the fact of the insolvency of the defendant. The sole question is, did the title to the cow pass absolutely to the defendant’s intestate «with the delivery of her to him, or was the sale conditional, and did the title remain in the vendor.

There is error in the judgment of the court below. We are unable to discover the conditional character of the transaction. It is an absolute unconditional sale of the cow. The defendant says to the plaintiff, send me your cow and I will perform for you certain services. The cow is sent, is delivered upon this contract into the actual possession of the defendant’s intestate. There is no more condition in this sale than in the ordinary sale of a chattel on a credit; as where one buys a horse and promises to pay the price at a future day, and the horse upon the faith of the promise is at once delivered into the possession of the vendee, it never has been contended that on failure of the vendee to pay on the day agreed upon, that the vendor could retake the horse or maintain an.action for it, for it is well settled in such a case that by the delivery of the horse into the actual possession of the vendee, the title of the vendor is gone and the horse has become the property of the vendee,'and the vendor has agreed to take for it the vendee’s promise to pay the price. So that if the vendee fail to pay at the time agreed, the vendor’s remedy is limited to an action for the breach of. that .promise, the damages for the breach being the amount of the price promised with interest. Benjamin on Sales, 622, 625. . •

There is error. The judgment in the court below -is reversed. Let this be certified to the superior court of Surry county, that further proceedings may be had in conformity to this opinion and the law.

Error. Reversed.