Bowers v. Anderson

• Decision Date: 31 January 1873
• Citation: 49 Ga. 143
• Parties: LOYD G. BOWERS, plaintiff in err0r. v. WILLIAM M. ANDERSON, administrator, defendant in error.
• Court: Georgia Supreme Court

49 Ga. 143

LOYD G. BOWERS, plaintiff in err0r. v. WILLIAM M. ANDERSON, administrator, defendant in error.

Supreme Court of the State of Georgia

(Atlanta, January Term, 1873.)

Statute of frauds. Sale. Part performance. Delivery. Before Judge Alexander. Pulaski Superior Court. April Term, 1872.

Loyd G. Bowers brought trover against William W. Mayo for ninety-two bales of cotton, of the value of $20,500 00. The defendant pleaded the general issue and the statute of frauds.

Pending the litigation (he defendant died, and Anderson, his administrator, was made a party.

The facts were as follows: In May, 1862, John M. Kibbee, as the agent of the plaintiff, went to Mayo's residence, at his instance, for the purpose of purchasing some cotton. They agreed upon the terms. The cotton was packed and pointed out, making ninety-two bales, each bale being estimated as of five hundred pounds weight. Any variance from this estimate was to be adjusted when the cotton was weighed. The cotton was to remain where it was at the gin-houses, under Mayo's care, free of storage, until hauled away, at plaintiff's risk. Kibbee stated that if it was burned on the night of the sale, it would be plaintiff's loss. The price agreed upon was *seven and a half cents per pound. Kibbee offered the money to Mayo, but the latter requestedhim to keep it subject to his check, as he did not like to keep so much money at home. The plaintiff was at once notified by Kibbee of the purchase, and had the cotton insured. The cotton was sampled before the purchase and would class "low middling." It was also agreed that if the cotton should remain in the possession of Mayo until his crop was laid by, he would haul it to Hawkinsville free of charge, otherwise the plaintiff was to pay for the hauling. Upon demand, Mayo refused to deliver the cotton. Kibbee returned the money which was to be paid for it to the plaintiff.

The jury returned a verdict for the defendant. The plaintiff moved for a new trial upon the following, amongst other grounds:

1st. Because the verdict was contrary to the law and the evidence.

2d. Because the Court erred in charging the jury "that the general rule of law applicable to the title to personal property under a sale, is this: Where the plaintiff claims title to goods under a sale, and a question is made as to the time when the property passed, it will be material for him to prove that everything that the seller had to do was already done, and that nothing remained to be done, but to take away the specific goods. They must have been weighed or measured and specifically designated, and set apart by the vendor, subject to his control, the vendor remaining at most a mere bailee."

The motion for a new trial was overruled and the plaintiff excepted.

S. Hall; Hansell & Hansell: Jackson, Nisbet & Bacon; C. C. Kibbee, for plaintiff in error.

Lanier & Anderson, for defendant.

*TRIPPE, Judge.

It is not necessary to the decision of this case to determine whether the charge of the Court was or was not strictly accurate and correct. There are many decisions going that far and which state the principle as given by Judge Alexander: Hanson v. Meyer, 6 East. R., 614; Wallace v. Breeds, 13 Ibid., 522; Simmons v. Swift, 5 B. &. C, 857; Barrett v. Goddard, 3 Mason, 112; Allman v. Davis, 2 Iredell, 12; and Mr. Selwyn affirms the rule to be as drawn from Whitehouse v. Frost., 12 East., 614, that if anything remains to be done on the part of the seller as between him and the buyer to ascertain the price, quantity or individuality of the goods before delivery, a right of property does not attach in the buyer.

The rule as stated has been quite strongly questioned by a writer in 1 American Law Review, 413-431 and authorities quoted, and reasons given why, as it is claimed, the principle has been too broadly announced. I am not inclined to join issue with the positions assumed the article referred to noris it necessary that it should be done. It may be true, that there may be cases where the property passes without a delivery—without the weight being ascertained or without the aggregate price being ascertained, but it must appear to be the intention of the parties; the goods must be ascertained, there must be a valuable consideration and the contract must satisfy the statute, either by part or entire payment, or earnest, or by acceptance and delivery of part or the whole, or by a writing duly signed. But the question here turns on another point.

This case was founded on a contract alleged to have been made in 1862, before the Code went into operation, so that it is to be decided under a construction of the 17th section of the statute of frauds. It is not intended by this to intimate that the case would be different if it arose under the provisions of the Code, but to assert it to be just what it is, a case controlled by the statute of frauds. The 17th section of that statute requires *that a contract for the sale of goods for the price of £10 or upwards, in order to convey the title to the goods, must be accompanied with proof, either that part of the goods sold has been accepted and actually received, or that something has been given in earnest to bind the bargain, or in part payment, or that a note or memorandum, in writing, of the bargain must be signed by the parties to be charged by the contract or their agents: Benjamin on Sales, 68. The intent of the statute was to prevent the enforcement of contracts above a certain value, unless the defendant could be shown to have executed the alleged contract by partial performance, as manifested by part payment, or part acceptance, or unless his signature to some written note or memorandum of the bargain—not to the bargain itself—could be shown: Ibid., 147. Or, in other words, the rule may be said to be that, in order to make such a parol contract binding, so as to pass title, there must be something beyond the mere words of the contract. To hold that the statute could be satisfied by the parties to the contract verbally stipulating in the contact and as part of it, that the goods should be considered as held by the seller as bailee for the purchaser, or that the price should remain with the buyer as the...