Keller v. State

• Decision Date: 12 April 1905
• Citation: 87 S.W. 669
• Parties: KELLER v. STATE.
• Court: Texas Court of Criminal Appeals

87 S.W. 669

KELLER v. STATE.

Court of Criminal Appeals of Texas.

April 12, 1905.

Appeal from Hill County Court; L. C. Hill, Judge.

M. Keller was convicted of violating the local option law, and appeals. Reversed.

See, also, 86 S. W. 1019.

Collins & Cummings and Etheridge & Baker, for appellant. Greenwood & Traylor and Howard Martin, Asst. Atty. Gen., for the State.

DAVIDSON, P. J.

The facts disclose that appellant shipped from West, in McLennan county, to Pat Moore, at Hillsboro, in Hill county, some whisky C. O. D., on an order previously given by Pat Moore to appellant. The conviction occurred in Hill county for a violation of the local option law. There is no question as to the fact that this was an ordinary C. O. D. contract or order. So we have practically the sole question as to where a sale under this character of contract occurs. Contracts are matters of fact to be decided by the terms and stipulations of the contracts and intent of the contracting parties. Where the question of presumption may be one arising in the case, that presumption will be taken in favor of the accused, under the broad theory of the presumption of innocence and the reasonable doubt of guilt which obtains in all trials of criminal cases. Even in civil cases "it will not be presumed that parties deliberately enter into an agreement or make a contract, knowing or intending that it should be invalid or violative of the law." Ryan v. M., K., T. Ry., 65 Tex. 16, 57 Am. Rep. 589. The place of sale often becomes a very material question in construing contracts. "The test is generally held to be the acquiescence or final agreement of minds by which the contract is concluded, and the place where that occurs is the place where the contract, for most purposes, is held to have been made." Life Ins. Co. v. Harris, 94 Tex. 25, 57 S. W. 635, 86 Am. St. Rep. 813. In Cleveland v. Williams, 29 Tex. 204, 94 Am. Dec. 274, it is said: "By the common law, if the seller make a proposition, and the buyer accept, and the goods are in 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 them at once on tender of the price, and sue for the goods as his own if delivery be refused. 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 is done it is merely a sale without a subject-matter in esse, which cannot take effect in præsenti." So, where the party sells a certain stipulated amount of property, to be segregated from a general stock, the sale is complete when the amount of property agreed upon has been so set apart, and the title at once passes to the buyer. However, if there are other conditions to pass title, it will not pass until compliance with such conditions. For instance, if, in addition to the segregation from the general stock, it is stipulated that the seller shall convey and turn it over to a common carrier, the title will not pass until it has been received by the common carrier. This was decided in Woods v. Half, Wise & Co., 44 Tex. 633. After it has then been received by the common carrier, the title is in the purchaser.

In Waples v. Overaker, 77 Tex. 7, 13 S. W. 527, 19 Am. St. Rep. 727, appellants were millers doing business in the city of Sherman, and contracted with appellees to buy wheat at the market price in Collin county, where they lived. Seven car loads of wheat were bought by appellees under this contract, and shipped to appellants, who refused to receive the wheat on its arrival at Sherman. The court said: "There may have been such constructive delivery and existence of other facts as would have vested title to the wheat in appellants, but they cannot claim, under the facts shown, that such an absolute delivery had been made as would defeat the lien of appellees for the purchase money." Again: "As the wheat stood in the cars, appellants refusing to receive and pay for it, it was the right of appellees to hold it until its price was paid, as they might have done, had the wheat not been shipped to Sherman. Appellants having refused to receive and pay for the wheat, appellees might have retained it, and recovered the difference between the contract price and the market price at the time and place of delivery, or they might have held the property for appellants at their risk, and recovered the purchase money," etc. See, also, Voelcker v. McKay (Tex. Civ. App.) 61 S. W. 424.

In Specialty Furniture Co. v. Kingsbury (Tex. Civ. App.) 60 S. W. 1030, the court, speaking through Judge Pleasants, said: "The contract of sale was complete when appellant accepted the order for the goods, and a delivery of the goods on the car at Evansville, Indiana, would have been a delivery to the appellee, and the title to the goods would have passed to appellee by such delivery."

In Irvin v. Edwards (Tex. Sup.) 47 S. W. 719, there was a contract between Irvin and Jennings by which Irvin contracted to sell Jennings certain cattle. A small portion of the purchase money was paid; the remaining installments to be paid as the cattle were delivered. The cattle were not delivered until after the 1st of January, 1895; the contract having been entered into on the 18th day of the previous September. The question in the case was whether Irvin, the vender, or Jennings, the vendee, was liable for the taxes for 1895 on the cattle. It was contended that as possession was surrendered subsequent to January 1, 1895, Irvin was liable for the taxes. Suit was instituted by Irvin to restrain Sheriff Edwards from enforcing the collection of the taxes. The district court issued a temporary injunction, which was subsequently perpetuated. The Court of Civil Appeals (45 S. E. 1026) reversed the judgment and dissolved the injunction. On writ of error the Supreme Court reversed the judgment of the Court of Civil Appeals, and affirmed the judgment of the district court. Passing on the question, the Supreme Court uses this language: "The Court of Civil Appeals held that, construing the whole instrument, the intention [that is, of passing the title] thus manifested was shown not to exist in fact, but that the parties intended that the title should not pass until delivery should be made. It is true that only a part of the purchase money was paid at the time, and the contract prescribed that the remainder of the purchase money should be paid in installments as the cattle should be delivered. This does not prove that the parties intended the title to remain in Irvin until delivery. It was not at all unusual in such transactions to so provide, but it was a reasonable arrangement for completing the payment of the price."

In L. Greif & Bro. v. Seligman (Tex. Civ. App.) 82 S. W. 534, this language is used: "In the absence of an express or implied agreement, it is the general rule that, as between the parties, if the goods are delivered to a carrier by the seller, it is a delivery to the buyer, and a fortiori to one specially designated by the buyer. The rule is that stated in Wheelhouse v. Parr, 141 Mass. 593, 6 N. E. 787: `When goods ordered and contracted for are not directly delivered to the purchaser, but are to be sent to him by the vendor, and the vendor delivers to the carrier, to be transported in the mode agreed on by the parties or directed by the purchaser, or, when no agreement is made or direction given, to be transported in the usual mode, or when the purchaser, being informed of the mode of transportation, assents to it, or when there have been previous sales of other goods, to the transportation of which in a similar manner the purchaser has not objected, the goods, when delivered to the carrier, are at the risk of the purchaser, and the property is deemed to be vested in him, subject to the vendor's right of stoppage in transitu.' If, however, there be an express agreement that the vender must actually deliver the goods at the point of destination, and not to be paid for unless so delivered, it would be binding upon the parties, and a delivery to the carrier would not be sufficient. From the testimony of Julius Seligman a jury might possibly be justified in concluding that such a contract was made. * * * Further, if it had been shown that no route had been designated, the delivery of the goods to the carrier was a delivery to appellee, in the absence of an agreement requiring the actual delivery of the goods to appellee in Seguin. Should the contract of purchase be silent as to the person or mode by which the goods are to be sent, a delivery by the vendor to a common carrier, in the usual and ordinary course of business, transfers the property to the vendee. Mechem, Sales, § 736, and authorities cited."

Authorities along this line might be multiplied indefinitely.

Mr. Benjamin, in his work on Sales (7th Ed.) § 362, says: "In 1803, in the case of Dutton v. Solomonson, it was treated as already settled law that, where a vendor delivers goods to a carrier by order of the purchaser, the appropriation is determined, the delivery to the carrier is a delivery to the vendee, and the property vests immediately. And in the United States the law is established to the same effect." Citing in the note supporting this proposition 3 B. & P. 582, per Lord Alvanley, C. J. And see Cork Distilleries Co. v. Gr. So. Ry., L. R. 7 H. L. 269; Johnson v. Lan & York Ry. Co., 3 C. P. D. 499, where, under somewhat curious circumstances, the same rule was applied; Krulder v. Ellison, 47 N. Y. 36, 7 Am. Rep. 402; Pacific Iron Works v. L. I. R. Co., 62 N. Y. 272; Mee v. McNider, 39 Hun, 345. On page 349 of the same work, in the note headed, "American Note. §§ 359-380," these cases are cited: "The American law fully agrees with the English that a delivery to a carrier, as...