Barrow v. Window

• Decision Date: 31 January 1874
• Parties: BUSHROD W. BARROW et al.v.THOMAS J. WINDOW et al.
• Court: Illinois Supreme Court

71 Ill. 214

1874 WL 8644 (Ill.)

BUSHROD W. BARROW et al.

v.THOMAS J. WINDOW et al.

Supreme Court of Illinois.

January Term, 1874.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Cass county; the Hon. CYRUS EPLER, Judge, presiding.

Messrs. POLLARD & PHILLIPS, for the appellants.

Messrs. KETCHAM & GRIDLEY, for the appellees.

Mr. JUSTICE MCALLISTER delivered the opinion of the Court:

The appellants, as vendors, sued appellees, as vendees, to recover for the refusal to accept and pay for a specific lot, comprising 374 sheep.

The declaration contains but a single count, in the usual form, for not accepting and paying for goods bargained and sold, and alleges that the sheep were to be delivered by plaintiffs to defendants at the scales of the former, where they were to be weighed, they having been previously yarded twelve hours without feed or water, and paid for by defendants at the rate of six cents per pound, less $25 on the whole amount of purchase money, as follows: two car loads, making about 120 sheep, to be so delivered, taken and paid for within sixty days, from October 19, 1872, the time of the sale, and the remainder at such time, on or before March 1, 1873, as defendants might elect. It was further alleged, as part of the contract, that in case any of said sheep died before the time of delivery, plaintiffs were not to supply their places with others. The defendants filed the general issue, which they afterwards, by leave of the court, withdrew; also two special pleas, the first of which averred, in substance, that, at the time of the sale and afterwards, plaintiffs had other sheep on their premises aside from those bargained, which other sheep were affected with an infectious disease, known as the “scab;” that before the time for delivery of the two car loads, within sixty days from time of sale, the said sheep in the declaration mentioned, without the fault or knowledge of the defendants but by the fault of the plaintiffs, were exposed to and some of them took said disease, which is common to sheep, and renders them unwholesome, unmarketable and worthless, and so rendered said sheep which had taken said disease. And further averred, that, at the time of making said contract, defendants were dealers in fat and marketable sheep, cattle, etc., and plaintiffs well knew that defendants contracted for said sheep as fat and marketable, and for the purpose of shipping them to market for mutton, and for no other purpose; and plaintiffs, knowing the premises, permitted the said sheep contracted for to become exposed to the disease aforesaid--concluding with a verification.

The second plea was like the first, except it avers that the duty of the defendants to take two car loads of said sheep within sixty days, from October 19, 1872, was afterward waived by the plaintiffs, and after such waiver, to-wit: February 1, 1873, defendants were at plaintiffs' premises, where the said sheep were, then ready, willing, and offered to accept from plaintiffs, and pay for, at the contract price, all of said sheep, except such as were diseased with the scab; and plaintiffs would not deliver any of said sheep unless defendants would accept and pay for all of said sheep, at the contract price, including those diseased as well as those not diseased, averring that said disease is common to sheep--is communicated by exposure--and when it infects them renders them unhealthy, nasty, troublesome, and of no value, which so rendered the said sheep--concluding with a verification. To these pleas plaintiffs replied, first, by traversing the averment that said sheep got the disease mentioned by the fault of the plaintiffs; second, by traversing the averment of waiver of performance as to the two car loads to be delivered within sixty days from the time of the contract--both replications concluding to the country. Defendants interposed a general demurrer to plaintiffs' replications, which the court sustained, and rendered judgment for defendants. Plaintiffs bring the case to this court, by appeal.

The declaration alleges, “that on the 19th day of October, 1872, at, etc., the said defendants bargained for and bought of the plaintiffs, and the plaintiffs, at the special instance and request of the said defendants, then and there sold to the defendants a certain lot of sheep, containing 374 head, then being,” etc. This allegation amounts to one of a sale of specific articles, which, as between the parties, passed the property in them to the defendants, although the possession remained in the plaintiffs; and the defendants, by not traversing it in either of the special pleas to which the replications in question were filed, admitted it. The words “bargained and sold,” have a settled legal meaning, and import a sale, which vests the property in the buyer. Seckel et al. v. Scott, 66 Ill. 106.

“A sale,” says Blackstone, “is a transmutation of property from one man to another, in consideration of some price or recompense in value.” 2 Com. 447. And he further says: “As soon as the bargain is struck, the property of the goods is transferred to the vendee, and that of the price to the vendor; but the vendee can not take the goods until he tenders the price agreed on. But if he tenders the money to the vendor, and he refuses it, the vendee may seize the goods, or have an action against the vendor for detaining them. And by a regular sale, without delivery, the property is so absolutely vested in the vendee, that if A sells a horse to B for 10 l, and B pays him earnest, or signs a note in writing of the bargain, and afterwards, before the delivery of the horse or money paid, the horse dies in the vendor's custody, still he is entitled to the money, because, by the contract, the property was in the vendee.” 2 Com. 448-9.

We have no statute of frauds in this State requiring a note or memorandum of the bargain in writing unless there was delivery of some part of the goods or payment of part of the price. And it is the established law here, that, as between the parties, the title to personal property passes without delivery, whenever the sale is completed; and an agreement to sell an article by weight or measure, when the article is identified and the price agreed upon, may be a complete sale, if the parties intended it as such, although the article sold is not weighed or measured. Holliday v. Burgess, 34 Ill. 193; Seckel et al. v. Scott, supra; Wade v. Moffett, 21 Ill. 110, and cases there cited.

If the term “sale,” of itself, imports a transmutation of property from one person to another, and a sale may be complete and the property pass when the sale of specific articles is by weight and the price agreed upon, if the parties intended it as such, although the articles have not been weighed, it follows that the words “bargained and sold,” in the declaration, would import, as a construction of the pleading, everything requisite to a regular sale, including the intention of the parties. Hence, if the defendants desired to contest the...