Strong v. Morgan

• Decision Date: 29 January 1902
• Citation: 8 Idaho 269,67 P. 1123
• Parties: STRONG v. MORGAN
• Court: Idaho Supreme Court

67 P. 1123

8 Idaho 269

STRONG v. MORGAN

Supreme Court of Idaho

January 29, 1902

SALE OF PERSONAL PROPERTY-DELIVERY OF POSSESSION-OBLIGATIONS OF SELLER.-Under the provisions of section 3252, the seller of personal property, until the delivery of possession of the same to the buyer, is bound to keep the same with at least ordinary care, and is responsible for loss of the same unless he shows that such loss occurred without his fault.

(Syllabus by the court.)

APPEAL from District Court, Bear Lake County.

Reversed and remanded. Costs of appeal awarded to appellant.

Glenn &amp Gough, for Appellant.

The only question involved in this case is whether or not the cattle were delivered to the appellant at the time they were purchased or bargained for. If they were, the judgment of the lower court should be sustained; if not, it should be reversed. Delivery is used in many different senses, and the result is a confusion as to the various terms applied to it. A very concise explanation of these terms, and in which the case at bar is distinguished, is found in the American and English Encyclopedia of Law, volume 21, page 523. (Benjamin on Sales, ed. 1888, secs. 674-676, pp. 631, 632.) On the question of intent in cases of this kind, there is a well-considered case in Hall v. Richardson, 16 Md 397, 77 Am. Dec. 303. (Messer v. Woodman, 22 N.H. 72, 53 Am. Dec. 241; Brown v. Denison, 2 Wend. 593; Idaho Rev. Stats., sec. 3252.)

Alfred Budge, for Respondent.

When, from the entire evidence, different minds might honestly reach different conclusions as to the sale, delivery and acceptance are questions for the jury, and their verdict will not be disturbed. There was nothing more to be done by the seller to perfect title in the buyer, and in that event, under the following authorities, the sale was complete and the delivery had taken place: Henline v. Hall, 4 Ind. 189; Secket v. Scott, 66 Ill. 106. When the contract has been completely made, the thing sold is at the risk of the purchaser, who must bear all subsequent losses, and is entitled to all subsequent gains. (Smith v. Phoenix Ins. Co., 91 Cal. 323, 25 Am. St. Rep. 191, 27 P. 738, 13 L. R. A. 475, and notes; 2 Kent's Commentaries, 11th ed., 492; Story on Sales, sec. 300.)

QUARLES, C. J. Sullivan and Stockslager, JJ., concur.

OPINION

QUARLES, C. J.

On the first day of October, the appellant purchased from respondent fifteen head of steers and three cows, and then paid five dollars down, and a day or two afterward paid the balance of the purchase price. The complaint alleges that the respondent failed to deliver one of said steers, and only delivered fourteen steers and the three cows. The answer of respondent denies that respondent only delivered fourteen steers, and alleges that respondent delivered the fifteen steers. This action was commenced in the probate court in and for Bear Lake county, to recover thirty-five dollars, the contract price paid by the appellant to respondent for the steer which was not delivered. The probate court rendered judgment in favor of the respondent, and appellant appealed to the district court, where the case was tried de novo by the court, without a jury, and the district court rendered judgment in favor of the respondent, from which this appeal is brought.

There was no motion for a new trial in the court below, but all of the evidence is contained in the appellant's bill of exceptions, and it is alleged in said bill of exceptions that said evidence is insufficient to support the judgment, and the specification of insufficiency of the evidence is sufficiently set forth therein. The evidence is brief, and is, in substance, as follows: Appellant went to the ranch of respondent on the first day of October, 1899, to buy some cattle of respondent. Appellant and respondent drove up to and into, a field where the cattle were grazing, and looked at them, and then returned to respondent's house. Appellant then asked respondent the price of said cattle, and respondent told appellant that he would take thirty-five dollars per head for the fifteen steers, and twenty-eight dollars per head for the three cows. Appellant agreed to this, paid some money to respondent, and on the next day gave to respondent a check for the balance of the purchase price. Appellant, at the time he purchased said cattle, asked respondent if he could keep them a few days for him, and respondent said, "yes." About two weeks after the contract of sale, respondent notified appellant to come, or send, and get the cattle. Respondent left home and went to Salt Lake City, and...