71 Ala. 42 (Ala. 1881), Edwards v. Meadows

Citation:71 Ala. 42
Opinion Judge:SOMERVILLE, J.
Party Name:Edwards, Hudmon & Co. v. Meadows.
Court:Supreme Court of Alabama
 
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Page 42

71 Ala. 42 (Ala. 1881)

Edwards, Hudmon & Co.

v.

Meadows.

Supreme Court of Alabama

December Term, 1881

Action on Promissory Note; Defense, Failure of Consideration.

APPEAL from Lee Circuit Court.

Tried before Hon H. D. CLAYTON.

SOMERVILLE, J.

Where a vendor makes sale of personal property in the custody of a third person, who is his bailee, and gives a delivery order to the vendee, it has long been settled that this will not amount to a delivery so as to vest the title in the vendee, until the order is presented and such third person agrees to become the bailee of the purchaser, expressly or impliedly.--Benj. on Sales,§ 175, § 680; Bentall v. Burn, 3 B. & C. 423; Barney v. Brown, 19 Amer. Dec. 720. It is true that where the custodian or bailee assents in advance of the sale to become the bailee of the buyer, this assent might be irrevocable after the sale, and the title would pass. A refusal by the custodian afterwards to deliver would be, not a refusal to become bailee, but to do his duty as such under the previous agreement which constituted him bailee for the purchaser. Benj. on Sales, § 175. So where goods are merely on the premises of a third person, who is not a bailee for the owner, as in the case of one holding tortious possession, delivery may be effected by the vendor's putting the goods at the disposal of the vendee, so as to be, actually or constructively, under the exclusive dominion of the latter.--Benj. on Sales, § 178.

Brooks in this case was clearly the bailee of the appellants, the machine sold by them to Meadows being in his possession. The mere giving of the delivery order, without more, did not transfer the title of the property, or amount to a delivery, unless so intended mutually by the parties, and such intention must be evidenced by proper proof, circumstantial or direct. When the order was presented to Brooks, if he had consented to attorn to Meadows so as to become his bailee, the delivery would have been complete.

And so the delivery could have been waived by the purchaser, if he had voluntarily consented to let Brooks retain the machine until the next day, or for any definite space of time, as an act of free grace or favor from himself. But if Meadows acted under the moral coercion of necessity dictated by the situation, and merely allowed Brooks to continue in custody as the best arrangement he could make under...

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