Drake v. Scott

• Decision Date: 28 February 1903
• Citation: 136 Ala. 261,33 So. 873
• Parties: DRAKE v. SCOTT.
• Court: Alabama Supreme Court

33 So. 873

136 Ala. 261

DRAKE v. SCOTT.

Supreme Court of Alabama

February 28, 1903

Appeal from City Court of Bessemer; B. C. Jones, Judge.

Detinue by Mattie Scott against M. E. Drake. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

The evidence showed that the defendant applied to the plaintiff to purchase the property described in the complaint; that the plaintiff agreed to sell the defendant the said property for a certain price for cash, and the defendant paid to her $5 to bind the trade, and it was agreed between them that the balance was to be paid when the defendant came to get the property purchased; that a few days thereafter the defendant came to the house of the plaintiff to obtain the property, which was delivered to him; that after the delivery of the property the defendant sought to pay the plaintiff the balance due upon the purchase price by delivering to her an account which the plaintiff owed the mercantile firm; that the plaintiff refused to accept this account in payment of the property sold, and demanded that she be paid the amount in cash, or that the property be returned to her; that the defendant never paid the amount agreed upon, nor did he return the property to the plaintiff. It was further shown that the plaintiff made a demand upon the defendant for the return of the property before the institution of the suit.

Pinkney Scott, for appellant.

Estes & Smith, for appellee.

HARALSON, J.

"Where there is a sale of goods, to be paid for in cash on delivery, payment and delivery are concurrent acts. In such case, payment is a condition precedent to passing title to the vendee. If delivery is made without demanding payment, or under circumstances showing no expectation of immediate payment, the condition is waived, and the title passes; but, if the goods are put into the possession of the buyer, on the understanding or agreement that he will pay for them immediately, and he fails or refuses to do so, the seller may recover the goods." Shines v. Steiner, 76 Ala. 458; Harmon v. Goetter, 87 Ala. 325, 6 So. 93; Benjamin on Sales (6th Ed.) §§ 1, 320, and note 4, p. 298.

The facts in this case show, without conflict, that the contract for the sale of the chattels sued for, to the defendant by the plaintiff, was for cash to be paid on delivery, the payment being a condition precedent to passing the title to defendant.

Affirmed.