Cleveland v. Williams

• Decision Date: 31 January 1867
• Citation: 29 Tex. 204
• Parties: LARKIN G. CLEVELAND v. JOHN H. WILLIAMS, ADM'R.
• Court: Texas Supreme Court

29 Tex. 204

LARKIN G. CLEVELAND

v.JOHN H. WILLIAMS, ADM'R.

Supreme Court of Texas.

January, 1867.

The court below charged the jury as follows: “If you find from the evidence that the corn in question, that is, the hundred bushels of corn, was in a bulk with other corn, and had not been measured out and separated from the bulk, so that the same could be identified previous to the death of Hall, then the sale was incomplete, and you will find for the plaintiff the value of the corn as proved.” This was error.

By the common law, if a seller make a proposition, and the buyer accept, and the goods are in the possession of the seller, and nothing remains to be done to identify them, or in any way prepare them for delivery, the sale is complete, and the property in the goods passes at once. The buyer acquires not a mere jus ad rem, but an absolute jus in re, and he may demand delivery at once on tender of the price, and sue for the goods as his own, if delivery be refused.

The 17th section of the statute of frauds and perjuries (Charles II), which requires that delivery by the vendor and acceptance by the vendee of part of the goods sold, or something given in earnest or part payment to bind the bargain, or that some note or memorandum of the bargain, in writing, to be signed by the parties, etc., in order to give validity to the contract, has never been re-enacted in Texas, and it has not become a part of our common law. Pas. Dig. art. 978, note 418.

No sale is complete, so as to vest in the vendee an immediate right of property, so long as anything remains to be done between the buyer and seller in relation to the goods. The goods sold must be separated and identified by marks and numbers, so as to be completely distinguished from all other goods, or from the bulk or mass with which they happen to be mixed.

The goods sold must be ascertained, designated, and separated from the stock or quantity with which they are mixed, before the property can pass.

Until this be done, it is merely a sale without a subject-matter in esse, which cannot take effect in presenti.

Where the vendor sold the corn in his crib before his death, and appointed an agent to measure and deliver it, which the agent did after the death of the principal, but before it was known to the parties, the title did not pass, and the administrator of the deceased had the right to recover the corn.

The only exception is the case where the power or authority is coupled with an interest in the thing actually vested in the agent. The reason of this exception is entirely compatible with the general ground on which the rule is founded: it is, that the agent, having the legal title to the property in himself, is capable of transferring it in his own name, notwithstanding the death of his principal; and the death of his principal, therefore, has no operation upon his acts.

This was not so by the civil law, but, by the common law, the death of the principal is an instantaneous and absolute revocation of the authority of the agent, unless the power be coupled with an interest.

APPEAL from Polk. The case was tried before Hon. SAMUEL A. WILSON, one of the district judges.

The petitioner, who sues as the administrator of the estate of Thomas B. Hall, deceased, alleges that said Hall died in September, 1860; that on the day of his death he was possessed, as of his own property, of one hundred bushels of corn, worth $1.50 per bushel; that after the death of said Hall the defendant took the said corn, without authority, and converted the same to his own use, and, therefore, lays damages at $500.

The defendant plead, 1st, general demurrer; 2d, general denial; and, 3d, specially, that in the life-time of the said Hall the respondent loaned to him $200, for which Hall gave to him his promissory note; that afterwards said Hall sold to him one hundred bushels of corn, at $1 per bushel, in part payment of said note, which respondent duly credited thereon; that said corn, so bought and paid for before the death of said Hall, is the same for which he is sued; that the balance of said note he now holds as a valid and subsisting claim against said estate, unpaid, etc.

The evidence is in substance as follows: John S. Cleveland states that in the fall of 1860 Thomas B. Hall told him that he had sold to Larkin G. Cleveland one hundred bushels of corn in payment of a debt he owed to said Larkin G. Cleveland, and that said Hall told him (witness) to retain that amount of corn out of a large bulk of corn then in his (Hall's) crib, and that C. B. Hall would measure it. A few weeks after this Thomas B. Hall died, away from home, on his way to Galveston. After the death of Thomas B. Hall (which was then unknown), C. B. Hall measured and delivered the corn to Larkin G. Cleveland, measuring it from a large bulk of corn then in Hall's crib.

C. B. Hall, brother of deceased, testified to the same facts. By agreement of counsel, it was admitted, as if proved, that Larkin G. Cleveland held a note on Thomas B. Hall for $200, and that it was credited with one hundred bushels of corn, at $1 per bushel, amount received as measured by C. B. Hall.

The charge complained of is as follows: “3d. If you find from the evidence that the corn in question, that is, the one hundred bushels, was in a bulk with other corn, and had not been measured out and separated from the bulk, so that the same could be identified previous to the death of Hall, then the sale was incomplete, and you will find for the plaintiff the value of the corn as proved.”

There were a verdict and judgment for plaintiff, from which the defendant appealed, and assigned for error the mistake in the charge.

C. L. Cleveland, for appellant. The measuring of the corn was merely a formal act, which could be well executed after the death of Hall, by the party nominated for that purpose. It is admitted, as a general proposition, that the death of the principal operates a revocation of an agency. But where an authority is coupled with an interest, or where it is given for a valuable consideration, or as security, it is otherwise. Story, Agency, § 477. The reason of the exception is entirely compatible with the general ground on which the rule is founded. It is, that the agent, having the legal title to the property vested in himself, is capable of transferring it in his own name, notwithstanding the death of the principal, and the death of the principal has no operation on his act. The power given by the principal, under such circumstances, is rather an assent or agreement that the agent may transfer the property vested in him, free from any equities of the principal, than strictly a power to transfer. Story, Agency, § 489. Nice distinctions are drawn in the law books as to what is necessary “to complete” a sale, especially so where the question of lien for price is involved, or the right of a subsequent purchaser, or of fraud as against creditors. But in this case no such questions arise.

As between the parties, the right of property passed. 1 Par. Con. § 5, bot. page 465; and Noy, Max. 88. The corn was bought and paid for; it only remained to be measured. This was to be done, not by the vendor, nor the vendee, but by a third party, acting for both, in his own name. What remained to be done was to be performed by John S. Cleveland and C. B. Hall. The former was “to retain” the corn; the latter to measure it; trusts cognate with the sale, springing out of the contract of sale, reposed in them, upon consideration paid attaching at once to the property and in them, to be executed for the benefit of L. G. Cleveland, which they could and did execute in their own names; and that is the true test of the lawfulness of the act. Had the same power been given to the purchaser by the vendor “to retain” and measure, under like circumstances, the death of the vendor clearly would not revoke that power, because it would be coupled with an interest. Does the rule change when the power is conferred on a third party to do the same thing? If so, its flexibility is marvelous. Hunt v. Rousmanier's Adm'r, 8 Wheat. 201; and Knapp v. Alford, 10 Page, 205. Further, the measuring and delivery were before the death of T. B. Hall was known. The act was in good faith, and might well rest on that ground, if it were simply the execution of a naked power. Cassidy v. McKenzie, 4 Watts & S. 282. But what shall be said of the equities of the case? Cleveland's debt, to the amount of the credit given thereon, is extinguished. Shall the estate of Hall get the benefit of the judgment besides, or shall Cleveland be driven to some sort of doubtful remedy to get back the price paid? Such circuity is not necessary to adjust the equities arising, and is abhorrent to a sound interpretation of the principles pervading the authorities.

The attention and inquiry of the jury were limited alone to the fact, that the measuring of the corn occurred after the death of T. B. Hall. The assumption that the contract of sale was incomplete, or that, if incomplete, it could not be completed after Hall's death, by measuring and delivery, is not well founded, and for that error the cause should be reversed.

No brief for the appellee has been furnished to the reporter.

COKE, J.

The only questions presented by the assignments of error, necessary to be considered, arise on the third clause in the charge of the court to the jury, which reads as follows:

“If you find, from the evidence, that the corn in question, that is, the hundred bushels of corn, was in a bulkwith other corn, and had not been measured out and sepated from the bulk, so that the same could be identified, previous to the death of Hall, then the sale was incomplete, and you will find for the plaintiff the value of the corn as proved.”

Considering this instruction with reference to the facts of this case, it involves two propositions: first, that in order to complete the sale of the corn, and pass the title to Cleveland, it...