H. S. Morgan & Co. v. And
| Decision Date | 01 January 1869 |
| Citation | 32 Tex. 363 |
| Court | Texas Supreme Court |
| Parties | H. S. MORGAN & CO. v. W. A. AND V. A. TAYLOR. |
1. A producer of cotton, still ungathered, contracted verbally with his creditor that he, the producer, would gather the cotton and take it to a designated gin-house, to be ginned and bailed; that the creditor should furnish the baling and rope, take the cotton to market when baled, sell it and apply the proceeds to the producer's indebtedness. The producer gathered the cotton and took it to the gin, where it was received as his property, and where it was soon afterwards attached by another of his creditors. A trial of the right of property ensuing between the attaching creditor and the other one, who claimed to be a purchaser by virtue of the above contract, it is held that the contract did not constitute a sale of the cotton, or divest the property out of the producer as against the attachment.
2. The indispensable element of a delivery is wanting to constitute this transaction a sale, or to change the property as against the attachment.
3. The further fact that an agent of the contracting creditor marked some of the cotton with the mark of the producer, while it was at the gin, tends rather to repel than to support an inference of a delivery under the contract.
4. See the statement of the case for instructions to the jury, which are highly commended by this court as a clear exposition of the law applicable to the facts.
ERROR from McLennan. Tried below before M. A. Long, Esq., special judge.
The opinion of the court states such of the facts as are involved in the decision. Morgan & Co., the plaintiffs in error, were the claimants of the property as against the appellees, who attached the cotton as the property of J. N. Smith, the defendant in the attachment.
The cause was tried at the December term, 1867, when the following instructions were given to the jury by the court below:
“1. In the trial of this issue as to the ownership of the cotton at the date of the levy of the attachment, the claimants, Morgan & Co., held the affirmative, and are therefore bound to prove a good title to the property in themselves.
2. As between the parties, delivery of possession is not essential to the completion of a sale of chattels, unless made so by the terms of the bargain; but as against an attaching creditor, such delivery of possession, actual or constructive, is essential to the completeness of such a sale. The change of possession, like other parts of the transaction, must be by the will of both parties, and with the design of rendering the sale complete. If anything remains to be done by the vendor which is material or important before the vendee can identify or possess the thing sold, or before it becomes deliverable, the sale is executory and incomplete, and the property does not pass absolutely to the vendee.
3. If the proof should satisfy the jury that the claimants, Morgan & Co., advanced to Smith, the defendant in the attachment, money upon his cotton crop, with the understanding and agreement that the said cotton should, when gathered and prepared for market, be delivered to said claimants to ship and sell, and apply the proceeds to the payment of such advances, such a transaction would not vest in the claimants such a lien on the cotton as to defeat the lien which the law gives to the levy of an attachment of a creditor upon said cotton.”
No brief for the plaintiffs in error has come to the hands of the reporter.
Bowers, Walker & Cullen, for the defendants in error, cited, on the question of delivery, Furlow v. Gillian, 19 Tex. 250;Hanson v. Myer, 6 East, 614; Ward v. Shaw, 7 Wend. 407; and 1 Par. Con. 527.
In this case, upon the trial of an issue formed, as to the right of property between an attaching creditor and one who claimed to be a purchaser, a verdict and judgment was rendered in the court below in favor of the attaching creditor.
The attachment was levied upon cotton at the gin of a third party, where it had been taken by the producer, and was then undergoing the...
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