L. H. Woods & Co. v. Half, Weiss & Co.
| Decision Date | 01 January 1876 |
| Citation | 44 Tex. 633 |
| Court | Texas Supreme Court |
| Parties | L. H. WOODS & CO. v. HALF, WEISS & CO. |
APPEAL from Galveston.. Tried below before the Hon. A. P. McCormick.
This was a trial of the right of property, under the statute, in certain merchandise levied on under an execution in favor of L. H. Woods & Co. against J. R. Brooks, and claimed by Half, Weiss & Co.
The merchandise had been bought by Brooks, at Galveston, of Half, Weiss & Co., on a credit of ninety days, and at the time of seizure by the sheriff were boxed up, marked with Brooks's name and place of residence, and on the dray on the way to the wharf in the city of Galveston for delivery to the Houston Navigation Company, a common carrier, to be transported towards its destination, Columbus, Texas.
It was shown in evidence that, by the custom of trade in Galveston, goods sold to interior merchants were not considered as delivered, and the risk of the ownership of the seller ended, until placed in charge of a carrier for conveyance to the purchaser, and the carrier's receipt or bill of lading taken therefor by the seller.
There was a verdict for claimants, and judgment rendered, from which Woods & Co. appealed.
Mills & Tevis, for appellants, cited 1 Pars. on Cont., 6th ed., pp. 519, 526, 595, 597; Cartland v. Morrison, 32 Me., 191; Kimbro v. Hamilton, 2 Swanst., 190; Hall v. Robinson, 2 Comst., 293;Cleaveland v. Williams, 29 Tex., 209; 2 Kent, 496; Dutton v. Solomonson, 3 Bos. & Pul., 584; Long on Sales, 150; 2 Greenl. Ev., sec. 249; Chandler v. Fulton, 10 Tex., 22.
F. Charles Hume, for appellees.
Law writers and courts have given some general rules governing questions like those involved in this case, but a careful examination will show that each case has been controlled by its own attendant circumstances. There is, however, one thing that courts have ever sought for, and if found clearly and unmistakably, it has been of controlling force: that is, the intention of the parties.
Some writers make the point at which the seller's duty in the premises ceases, the initial point of a change of property.
In the case of Gerard v. Prouty, 34 Barb., 456, which was a sale of cigars at auction, the court say: “At the time of damage the cigars had not been weighed, there being loose ones not counted.”
“Both of these acts, as well as delivery, were necessary to pass the title.”
Was there a sale of the property to Brooks, or was it a negotiation about a sale?
A sale imports and necessarily carries with it a change of ownership.
If there be a bargain for the sale of specific goods, and there remains something material to be done by the seller, and a loss occurs, it falls on the seller. (Pars., 47.)
Questions of this kind have given rise to much litigation and caused some perplexity. Whatever rule be adopted, it may be sometimes difficult to apply it, but we cannot doubt that the true principle is this: Every sale transfers the property, and that is not a sale which does not transfer the property in the thing sold; but this property cannot pass, and therefore the thing is not sold unless, first, it is completed and wholly finished, so as to be in fact and in reality the thing purporting to be sold; and in the second place, it must be so distinguished and discriminated from all other things that it is certain, or can be made certain, what is the specific thing the property in which is changed by the sale. If the transaction be deficient in either of these points, it is not a sale, although it may be a valid contract for a future sale of certain articles when they shall be completed, or when separated from others.
A contract for a sale of certain property when something remains to be done, or at the happening of some event, is not completed when the thing is done or the event happened. The buyer does not then become the owner of the property, and...
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...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 In Waples v. Overaker, 77 Tex. 7, 13 S. W. 527, 19 Am......
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