Hagins, Etc., v. Combs, Etc.

• Decision Date: 10 November 1897
• Parties: Hagins, Etc. v. Combs Etc.
• Court: Kentucky Court of Appeals

102 Ky. 165

Hagins, Etc. v. Combs Etc.

Court of Appeals of Kentucky.

November 10, 1897.

APPEAL FROM BREATHITT CIRCUIT COURT.

G. W. FLEENOR, J. B. MARCUM AND W. W. VAUGHN, FOR APPELLANTS.

J. J. C. BACH AND W. W. McGUIRE, FOR APPELLEES.

JUDGE HAZELRIGG DELIVERED THE OPINION OF THE COURT.

Appellants and appellees claimed to be the owners of certain saw logs in Breathitt county, Ky., by purchase from the same original owner. Appellants insist they were the first purchasers, and the sole question in this case is whether the title passed to appellants under the state of facts presented in this record. The only material evidence bearing upon the issue is given by the appellant, D. F. Hagins, and is as follows:

"I am one of the plaintiffs in this action. I bought the logs claimed by the plaintiffs in this action from H. D. Back for myself and B. M. Hagins. Had two trades with Back. Sold him some goods and a log wagon and he gave me his note. The note recites that he was to pay same in logs, delivered at Jackson. Said note reads as follows:

                  "`$140.                Jackson, Ky., December 18, 1893
                

"`One day after date I promise to pay to the order of B. M. and F. Hagins one hundred and forty dollars, with interest at 8 per cent. until paid, value received. The above amount to be paid in logs at market price in the spring of 1894, delivered at Jackson. H. D. BACK.'

"Some time after this Loge Terrell sued out an attachment against Back, and I went to Back and proposed to buy the logs. This was in February, 1894. He agreed to sell the same to me and we made the trade. The logs at that time were at the mouth of Roark's branch of Quicksand, about three miles above Jackson and down Quicksand, below the mouth of said branch at Back's house. I took possession of the logs and branded them with a large `C.' I branded all the logs Back had at the mouth of said branch, and I gave him the branding hammer and he took it down to where the other logs were and had them branded. Under our trade and by the terms of same the logs were delivered into my possession and were to become our property and he, Back, was to run them to Jackson for me. We did not measure the logs, as it was raining, nor did we agree upon the price except in this way; I was to pay him for the logs the most that he could get offered in money for them, delivered at Jackson, when measured."

It is a well-settled principle of law that where there is a contract for the sale of personal property in a deliverable state, but the seller is bound to weigh, measure, test or do some other act or thing with reference to the property for the purpose of ascertaining the price, the property or...