G.A. Gray Co. v. Taylor Bros. Iron-Works Co.

• Decision Date: 27 November 1894
• Docket Number: 257.
• Citation: 66 F. 686
• Parties: G. A. GRAY CO. v. TAYLOR BROS. IRON-WORKS CO., Limited, et al.
• Court: U.S. Court of Appeals — Fifth Circuit

66 F. 686

G. A. GRAY CO. v. TAYLOR BROS. IRON-WORKS CO., Limited, et al.

No. 257.

United States Court of Appeals, Fifth Circuit.

November 27, 1894

By article 3227, Civ. Code, 'he who has sold to another any movable property which is not paid for, has a preference on the price of his property over the creditors of the purchaser whether the sale was made on a credit or without, if the property still remains in the possession of the purchaser; so that, if the vendor may have taken a note or other acknowledgment from the buyer, he still enjoys the privilege ' Rivas v. Hunstock, 2 Rob. (La.) 193. If it is urged that the seizure and sale of the property have destroyed the vendor's lien, it was held in Lyons v McRae, 14 La.Ann. 438: 'Where property has been seized and sold under execution, the money realized still belongs to the debtor, and must be surrendered to the syndic ' Nor can it be claimed that it was necessary to preserve the privilege by registry. Stevenson v. Brown, 32 La.Ann. 461; Allen v. Buisson, 35 La.Ann. 108; Bank v. Williams. 43 La.Ann. 419, 9 So. 117. The contract made in Ohio should have been made and completed in that state, to be an Ohio contract,-- for in McIlvaine v Lagare, 36 La.Ann. 360, where the contract of sale was made in Ohio, but the acceptance was not to take place until after inspection in Louisiana, it was held that this was a Louisiana contract; and in Overend v. Robinson, 10 La.Ann. 728, 'where the sale between the parties was made in New York, executory merely, with the intention that it should be consummated in New Orleans, and it was consummated there, the contract must be considered as completed in New Orleans, and the vendor's privilege may be exercised according to the laws of Louisiana. ' In the case at bar the planer was to be delivered and set up in New Orleans. That setting up was a thing to be done in this state satisfactorily before payment. It was to be erected and tested. According to the above decisions, that executory contract would have made this a Louisiana contract. But that contract was annulled by the refusal of defendants to comply with its terms after its arrival, and defendants then made to Mr. Edman, the agent in this state, a new proposition, on new terms. The Gray Company released them from it, consented to the revocation, and might have sold to any third person. By Civ. Code, arts. 1805, 1806, the modification or change in a proposition is in all respects a new offer, and 'he who makes the offer may withdraw it. ' See Benj. Sales, p. 287. Defendant Mr. Frank, who alone defends this suit, claims that this was only a modification of the Ohio contract, and that it is the same contract. We have seen that contract was executory here, but if it was not, and was complete there, under article 1805, Civ. Code, that contract ceased to exist by mutual agreement. By this article, 'the acceptance to form a contract must be in all things conformable to the offer. ' It cannot be denied that that acceptance had been withdrawn after its arrival, and both parties set free. It cannot be denied that a new and materially altered offer to buy was made after the arrival of the thing here. There can be no question of novation of the contract, but it was annulled, and that long before the failure of defendants, and before any litigation was contemplated.

Another question was raised in argument in the lower court. Admitting that this machine was here in New Orleans, and the property of the Gray Company, of Ohio, but represented by an agent here, will a sale made by that agent to one domiciled here, upon an offer transmitted through the agent to the foreign principal, and accepted through same agency, be a Louisiana contract? The supreme court of this state holds that it is, in Chaffe v. Heyner, 31 La.Ann. 599: 'As to rights and remedies of creditors, personal property has a situs or locality, and is to be governed by the laws of the country where it is located. ' When there arises a conflict between the law of the domicile of the owner and the creditor, the court holds this: 'While recognizing the principle that all contracts in regard to personal property must be regulated by the lex loci of the domicile of the owner. ' But the situs of the thing sold cannot determine the question presented as much as the question, under what laws did the agreement take place? In the same case above quoted the court said, 'This was not an executed contract, but an executory contract, and it was to have its execution in Louisiana. ' In Beirne v. Patton, 17 La. 590, this court correctly announces that 'it is a well-settled rule that, where a contract is either expressly or tacitly to be performed in another place than that where it is made, its validity is to be governed by the law of the place of performance. ' Story, Confl. Laws, p. 233; 2 Kent, Comm. pp. 393, 459. So that this contract at bar, whether viewed as having its inception in Ohio and completion here, or as wholly begun and executed here, after its arrival, should be governed by the laws of this state, as to the rights and remedies.

It was further argued by defendant that this planer had become part of the realty by being placed in...