Baker v. McDonald

Decision Date05 October 1905
Citation104 N.W. 923,74 Neb. 595
PartiesBAKER v. MCDONALD.
CourtNebraska Supreme Court

OPINION TEXT STARTS HERE

Syllabus by the Court.

The general rule is that when the terms of sale of personal property have been agreed on, and the bargain is struck, and everything the seller has to do with the goods is complete, the contract of sale becomes absolute as between the parties without actual payment or delivery, and the property and the risk of accident to the goods vest in the buyer.

Where the time of payment is not fixed by the contract of sale, the law presumes a cash sale, and, while title may have passed to the buyer, he is not entitled to possession until the full purchase price has been paid or tendered.

Where the amount to be paid is to be determined by measurement of the property to be made by the parties, a measurement which is grossly unfair, as the result of fraud or mistake, is not binding, and a tender based thereon does not entitle the purchaser to possession.

Where the property has been set apart and identified, and title vested in the purchaser, who has paid part of the purchase price, but because of fraud or mistake in the measurement his tender of the balance due is not sufficient in amount, the seller may recover possession of the property from the purchaser by an action in replevin on the ground of special ownership and right of possession; but he cannot maintain such action under the claim of absolute ownership without rescinding the contract of sale and tendering back the amount paid.

Commissioners' Opinion. Department No. 2. Error to District Court, Dodge County; Hollenbeck, Judge.

Action by Peter A. McDonald against Thomas Baker. There was judgment for plaintiff, and defendant brings error. Reversed.

John P. Breen and C. E. Abbott, for plaintiff in error.

R. J. Stinson, H. C. Maynard, and Geo. L. Loomis, for defendant in error.

DUFFIE, C.

McDonald brought this action in replevin to recover from Baker certain hay, of which he claims to be the absolute owner. On a trial to the court without a jury, judgment went in his favor, and Baker has brought the case here on error. The parties entered into a contract relating to the hay in question, and signed the following memorandum: “Fremont, Neb., Oct. 9th, 1902. This day I have sold to Thomas Baker thirty stacks of hay at $2.75 per ton in the stack, for which I have received $100.00. The hay is to be measured in the stack. This hay is to be moved off the ground before March 1st, 1903. Thomas Baker. P. A. McDonald.” There were more than 30 stacks in the field at the time the contract was made, and the particular stacks which Baker was to have were not set apart or designated; but it was understood that Baker might select them from the whole number in the field. Some time after the contract was made, and before the hay was measured, Baker, at the request of McDonald, made a further payment of $200, making $300 paid on the contract price. Baker was unable to be present in person when the hay was measured, but was represented by a man of his own selection, who participated in that part of the transaction. The measurement was made of 31 stacks, instead of 30; but of this no complaint is made by Baker. Baker took the figures of the measurements with him to Omaha, and after some delay made a computation, and found, as he claims, that the stacks contained 112 tons and a fraction. He then wrote the plaintiff, giving the measurements and result of his computation, and inclosing his check for $8.40, as the balance due on the hay according to his measurements and computation. McDonald immediately returned the check, with a letter to the effect that he was not satisfied with the measurements. On receipt of this letter Baker answered, saying that, if McDonald was not satisfied with the measurements, he could return the $300 and have the hay. In the meantime Baker had commenced to bale the hay, and had shipped about 14 tons of it to Omaha. On receipt of Baker's last letter, McDonald went to the field where the hay was stacked, notified Baker's men not to press or ship any more of it, and then brought this action to recover possession of the hay, alleging that he was the absolute owner thereof.

The case was brought and tried on the...

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2 cases
  • Tuthill v. Sherman
    • United States
    • South Dakota Supreme Court
    • October 18, 1915
    ...v. James, 107 Cal. 348, 40 Pac. 534, the sale was executed when the contract was entered into. In some, as in Baker v. McDonald, 74 Neb. 595, 104 N.W. 923, 1 L.R.A. (N.S.) 474, the contract left nothing to be done but the selection of the property purchased from a larger amount and such sel......
  • Edwards v. Hastings Distributing Company
    • United States
    • Nebraska Supreme Court
    • February 16, 1922
    ... ... payment. In such case the rule in this state is that, when ... the time of payment is not fixed, a cash payment is ... contemplated. In Baker v. McDonald, 74 Neb. 595, 104 ... N.W. 923, we said: "Where the time of payment is not ... fixed by the contract of sale, the law presumes a cash ... ...

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