State v. Wernwag

• Decision Date: 30 April 1895
• Citation: 116 N.C. 1061,21 S.E. 683
• Court: North Carolina Supreme Court
• Parties: STATE . v. WERNWAG.

21 S.E. 683

116 N.C. 1061

STATE .

v.WERNWAG.

Supreme Court of North Carolina.

April 30, 1895.

Ordinance—Violation.

An ordinance prohibited the sale of fresh meats without license within certain limits. A butcher doing business outside of these limits, in response to an order for fresh meats, delivered them, for a price agreed on, to the purchaser within the limits. Held a sale in violation of the ordinance.

Appeal from criminal court, Buncombe county; Jones, Judge.

A. Wernwag was convicted of selling fresh meat without a license, in violation of a city ordinance of Asheville, and appeals. Affirmed.

The Attorney General, for the State.

MONTGOMERY, J. The city of Asheville, by one of its ordinances, prohibits by fine the sale of fresh meats, without a license first had from the city, within a radius of three-fourths of a mile from the courthouse as the center of the circle, except at the market established by the city. The defendant, who lived and conducted the business of a seller of fresh meats outside of the three-fourths mile limit, received a telephonic message from C. H. Southwick, manager of an hotel inside of the limit, to bring to him at the hotel some fresh meats, the prices being agreed on. Agreeably to this message, the defendant brought, in his own wagon, the meats to the hotel, and delivered the same, receiving pay ment afterwards. In making this transaction, did the defendant violate the city ordinance, and thereby become liable for the fine imposed by the city? We are of the opinion that he did. In the first place, the goods ordered were not of a specific character, and therefore the contract was only executory. The witness said, "I telephoned to the defendant to send me some fresh beef and fresh mutton, describing such as I desired." It cannot be doubted that if the meat, when delivered at the hotel, had not been of the kind ordered, the buyer could have refused to receive it. "Where there is a sale of goods generally, no property in them passes until delivery, because until then the very goods sold are not ascertained." Benj. Sales, § 315. The general rule is that, if it is a part of the contract of sale that the seller shall deliver the property sold at some place specified, and re ceive payment on delivery, title will not pass until such delivery. Id. § 325; Edmondson v. Fort, 75 N. C. 405.

2. The transaction was executory. The difference between this and a sale is that in the latter the goods which are the subject of the contract become the property of the buyer immediately upon the conclusion of the contract regardless of delivery, and the risk of loss or injury is upon the buyer; whereas in an executory contract the title to the goods is in the seller until the contract is executed. If, in this case, the fresh meats had been lost or destroyed on their way from the defendant's shop to...