Barber v. Thomas
Decision Date | 07 March 1903 |
Docket Number | 13,030 |
Citation | 71 P. 845,66 Kan. 463 |
Parties | JOSEPH BARBER v. GEORGE G. THOMAS |
Court | Kansas Supreme Court |
Decided January, 1903.
Error from Atchison district court; W. T. BLAND, judge.
Judgment affirmed.
SYLLABUS BY THE COURT.
TITLE AND OWNERSHIP--Personal Property. If it is the intent of the parties to a contract of sale of personal property that the title shall presently vest in the vendee such intent will govern, and ownership passes, although possession is retained by the vendor.
Waggener, Doster & Orr, for plaintiff in error.
Jackson & Jackson, for defendant in error.
OPINION
Defendant in error sold to one George W. Cole 1200 bushels of corn and gave to the latter a bill of sale, as follows:
On the same day Cole assigned the contract to Barber, the plaintiff in error. In December, following, Barber paid to Thomas $ 200, on account of the purchase-price. In February, 1899, a constable holding an execution against Barber levied on, and sold, 769 bushels of the corn as the property of the latter. The question is whether, under the contract between the parties, title to the grain passed to Barber before the levy and sale. In response to particular questions of fact submitted by plaintiff below, the jury answered:
The following particular questions of fact, submitted by the defendant, were answered by the jury:
Counsel for plaintiff in error contend that, because the corn was to be shelled by Thomas before its delivery to the purchaser, which was not done at the time of the levy, no title had then passed. The findings of the jury concerning what was to be done by the seller before delivery do not negative the first finding submitted by defendant below, which was that an agreement was made between the parties on and after the date of the bill of sale that, upon payment of $ 200 to the seller, the right of ownership and title to the corn should be in Barber.
In Howell v. Pugh, 27 Kan. 702, it was held:
"In a contract of sale of personal property, the intent of the parties controls, and if they intend a present vesting of title, the title may in fact pass at once to the purchaser, although the actual delivery thereof is to be made subsequently."
To the same effect, see Kingman v. Holmquist, 36 Kan. 735 14 P. 168, 59 Am. Rep. 604; Shepard v. Lynch, 26 id. 377; ...
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