Backentoss v. Speicher et Ux.
| Decision Date | 01 January 1858 |
| Citation | 31 Pa. 324 |
| Parties | Backentoss versus Speicher et ux. |
| Court | Pennsylvania Supreme Court |
The assignment vested the legal title to the goods in Backentoss, and he might have reduced them into possession, but did not. He left them in possession of the defendants, and when he sold to Mrs. Speicher, he permitted them to unite the legal title with the actual possession. I say the legal title, for, although the sale was made on a condition precedent, which was not complied with, and the title would not have vested had the condition been insisted on, yet it is manifest the condition was waived, and the title permitted to vest.
The condition was sixty days' credit on a note with satisfactory security. No note was given, and no money was paid, and yet the assignee, though he may have demanded the price, made no legal reclamation of the goods for more than four times sixty days. The sale was 9th February 1855, and this action was not brought till the 21st November 1855.
That he meant to acquiesce in the sale, notwithstanding no note was made, is proved not only by this long delay, but by his accounting to the creditors for the price of the goods, as if he had been paid for them.
Never having had the possession, and having sold all the interest he had to sell, the legal title, regardless of the condition prescribed (which, because self prescribed, he was free to waive), what ground has he for recovering in replevin?
In Bowen v. Burk, 1 Harris 149, it was said, on the authority of several cases, that if one sells goods for cash, and the vendee takes them away without payment of the money, the vendor should immediately reclaim them, by pursuing the party and retaking them, and this may be done, when necessary, even by force; but where he lies by and makes no complaint in a reasonable time, he consents to the absolute transfer of the property, and the contract is consequently complete against all the world.
This is the principle that is decisive against the present plaintiff. A sale of goods for cash is, strictly speaking, a sale on...
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