Bowen et al. v. Burk et Ux.

• Decision Date: 01 January 1852
• Citation: 13 Pa. 146
• Parties: Bowen et al., Plaintiffs in error, versus Burk et ux.
• Court: Pennsylvania Supreme Court

13 Pa. 146

Bowen et al., Plaintiffs in error, versus Burk et ux.

Supreme Court of Pennsylvania.

FROM the Nisi Prius at Philadelphia, before BURNSIDE, J.

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Francis E. Brewster, counsel for defendants below and plaintiffs in error, assigned a number of errors, the principal of which was, that the judge erred in refusing to instruct the jury affirmatively upon his third point of charge.

J. Randall and Samuel Perkins, for plaintiffs below and defendants in error.

The opinion of the Court was delivered by ROGERS, J.

A sale is defined to be a transmutation of property from one man to another, in consideration of some price or recompense in value. From this the consequence is deduced, that upon all sales of goods in possession, the property is changed immediately upon the making of the contract, although the actual possession may not be obtained by the vendee, until the fulfilment of the stipulations; thus, if a man sell his horse for money, though he may keep him until he is paid, yet the property of the horse is in the bargainer or buyer. Ross on Vendors 1. So, where a man sells goods in possession for cash, but subsequently delivers the goods, without exacting payment, the property passes to the vendee, not only as against all the rest of mankind, but as against the vendor himself. In such a case, the only remedy of the vendor is an action on the contract to recover the price. By an unqualified delivery, notwithstanding a cash sale, he relinquishes the advantage of his possession and trusts to his action on the contract. This is ruled in Leedom v. Philips, 1 Yeates 529; and in Harris v. Smith, 3 S. & R. 20. If one sell goods for cash, as is said in Leedom v. Philips, and the vendee take 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.

Had not these principles been lost sight of at the trial, it is plain, that the point on which the cause was made to turn, to wit, "whether the plaintiff paid for the goods before the defendant's levy," would have been totally irrelevant. The evidence put it beyond all reasonable doubt, that the property was purchased at the auctioneer's sale, for the use of the plaintiff; and...