Tufts v. Griffin

• Decision Date: 27 October 1890
• Citation: 107 N.C. 47,12 S.E. 68
• Court: North Carolina Supreme Court
• Parties: Tufts. v. Griffin.

107 N.C. 47

12 S.E. 68

Tufts.

v.Griffin.

Supreme Court of North Carolina.

Oct. 27, 1890.

Conditional Sale—Rights or Parties.

Where a purchaser of personalty, under a contract by which the title is to remain in the seller until payment of the entire price, has unconditionally promised to pay the price, and has taken possession of and used the property as his own, and it is burned while in his possession before default in payment of the purchase money and without negligence on his part, he is liable for the price.

Appeal from superior court, Bertie county; Womack, Judge.

Action by James W. Tufts against J. S. Griffin on a note given by defendant for part of a purchase price of asoda fountain purchased by him of plaintiff. By the contract of sale the title to the property sold was not to pass until the entire price was paid. The property was destroyed before the note matured. Judgment for plaintiff, and defendant appeals.

D. C. Winston, for plaintiff.

W. L. Williams, for defendant.

Shepherd, J. This is a case of the first impression in this state. We have here an absolute promise of the defendant to pay the plaintiff a certain sum, it being the balance of the purchase money due the plaintiff upon the sale of a soda apparatus to the defendant. The sale was a conditional one, (see Clayton v. Hester, 80 N. C. 275: Frick v. Hilliard, 95 N.C. 117; and the cases cited,) and, under the contract, the defendant took the apparatus into his possession, and used it in all respects as his own. Without any negligence on the part of the defendant and before any default in the payment of the purchase money, the property was destroyed by fire. The question is, who shall bear the loss? The defendant insists that it should fall upon the plaintiff because the transaction amounted to nothing more than an executory agreement to sell, and that, inasmuch as the plaintiff cannot now perform the contract, the defendant should not be compelled to pay. It is very true that such contracts are sometimes called "executory, " (as in the case of Ellison v. Jones, 4 Ired. 48,) and the vendee is also termed a "bailee, " (Perry v. Young, 105 N. C. 466, 11 S. E. Rep. 511,) but it must be observed that these expressions are used in reference to the strict, legal title to the property, and they can therefore have no influence in the determination of the present question, which is purely one of considerations for an absolute promise to pay. The recent decision in Burnley v. Tufts, 66 Miss. 49, 5 South. Rep. 627, is directly in point. There, it seems that this same plaintiff sold a soda apparatus under a contract precisely similar to this, and the property was destroyed, as in this case, after some of the notes had been paid, and before the maturity of the others. The court decided that the plaintiff was entitled to recover the amount due upon the remaining notes. As we entirely concur in the reasoning upon which the decision is based, we will reproduce a part of the language of the opinion. The court says: "Burnley unconditionally and absolutely promised to pay a certain sum for...