Bell v. Dobyns
| Decision Date | 27 June 1916 |
| Docket Number | 6546. |
| Citation | 158 P. 1130,60 Okla. 52,1916 OK 734 |
| Parties | BELL v. DOBYNS ET AL. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
D. was engaged in the cotton business, and had, prior thereto, sold to B. various lots of cotton, which were shipped in the name of D., with draft attached to the bill of lading for the price thereof. D. notified B. that he had 25 more bales for him, which D. set aside and marked as directed by B. Subsequent thereto, and prior to the coming of B. to Lindsay where the cotton was, 9 bales of said cotton were destroyed by fire. B. afterwards came to Lindsay, and the 16 remaining bales of said 25 bales of cotton were shipped in the name of D. to the party directed by B., with draft attached to bill of lading, drawn by B. for the purchase price of said 16 bales of cotton. Held, that the marking and setting aside of said 25 bales of cotton did not constitute a delivery of said cotton to B. by D. Further, held, that at the time said 9 bales of cotton were burned, the title thereto had not passed from D. to B.
Commissioners' Opinion, Division No. 1. Error from County Court, Garvin County; W. R. Wallace, Judge.
Action by T. J. Dobyns and others against J. E. Bell. Judgment for plaintiffs, and defendant brings error. Reversed with instructions.
Dorset Carter, of Oklahoma City, L. T. Cook, of Purcell, and Gray & McVay, of Oklahoma City, for plaintiff in error.
Joe B Thompson, B. W. Patterson, and L. H. Hampton, all of Pauls Valley, for defendants in error.
This controversy arises on the claim that one of the defendants in error Dobyns, had sold and delivered to Bell 9 bales of cotton which were burned, and which were sold and delivered before said cotton was burned. Plaintiff in error on his side pleaded and contended that he had not purchased the cotton; that it had not been delivered to him; that he had no title to said cotton at the time of its destruction. Hereinafter the parties will be designated as they were in the trial court. The uncontradicted evidence is that Dobyns was engaged in the cotton business; that plaintiff's son lived at Lindsay and acted as his agent in this transaction, and that the defendant resided at Purcell and was engaged in buying cotton; that prior to September 19, 1909, Dobyns, plaintiff's son, acting for plaintiff, had sold various lots of cotton to Bell, and on September 19, 1909, phoned Bell that he had 25 bales more for him, and Bell stated that he would come on the next day, which he did not do; that Bell had instructed Dobyns that all cotton sold to him should be marked for identification with the initials, "A. E. C.," and that on September 20, 1909, plaintiff's son set aside, on the gin platform at Lindsay, 25 bales of cotton, and marked them, "A. E. C.," as per Bell's instructions. On the morning of the 21st, a fire occurred which destroyed 9 bales of the 25 bales of cotton. On the 23d day of September Bell came to Lindsay, and had the 16 bales shipped, and paid for same by draft on Alexander-Eccles Company of Dallas, payable to the Farmers' Exchange Bank, but failed to pay for the 9 bales which had been destroyed. The remaining 16 bales of cotton were shipped, and, as disclosed by the bill of lading in evidence, given therefor, were shipped in the name of plaintiff, with draft attached for the amount of such cotton; that all cotton previously sold by plaintiff to Bell had been shipped under bill of lading with draft attached for the payment of the price of such cotton; and that Dobyns invoiced to Alexander-Eccles Company all of the 25 bales, including the 9 bales burned. There was other evidence in the case, including evidence as to the interest of the plaintiff bank in said cotton, and as to how insurance of said cotton burned would be paid, but which, in the view we take of the case, we deem unnecessary to recite. Upon the conclusion of the evidence for plaintiff, the defendant demurred to the evidence, which was overruled and excepted to. The jury found for the plaintiff in the sum of $576.73. Defendant timely moved for a new trial, which was overruled and excepted to, and judgment entered in accord with the verdict, and this appeal prosecuted to reverse the same.
We are of the opinion that the crucial question involved in this cause is as to whether or not the said 9 bales of cotton which were destroyed by fire were sold to the defendant. In other words, were the 9 bales of cotton, at the time they were destroyed, the property of the plaintiff or the defendant? We are of the opinion that the shipment of the cotton under said bill of lading, with draft attached, clearly indicates that it was the intention of the parties that the title to all the cotton sold by Dobyns to Bell was not to pass until the cotton was paid for, including the 9 bales destroyed by fire. The mere marking of the 25 bales of cotton with the initials as directed by the defendant did not constitute delivery, and invest the defendant with title to the cotton.
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