Wells v. Littlefield

• Decision Date: 05 June 1883
• Docket Number: Case No. 4703.
• Citation: 59 Tex. 556
• Court: Texas Supreme Court
• Parties: MARSHALL WELLS v. GEO. W. LITTLEFIELD.

59 Tex. 556

MARSHALL WELLS

v.GEO. W. LITTLEFIELD.

Case No. 4703.

Supreme Court of Texas.

Jun. 5, 1883.

APPEAL from Lampasas. Tried below before the Hon. W. A. Blackburn.

Suit by the appellee, Geo. W. Littlefield, against Marshall Wells for the recovery of one thousand and eighteen head of cattle, of which plaintiff claimed to be the owner, and which were alleged to have been taken possession of and unlawfully withheld by defendant. Plaintiff obtained a writ of sequestration. The petition alleged the average value of the cattle to be $9.80 per head, and the aggregate value to be $10,000.

Defendant Wells filed his answer, in which he pleaded:

1st. General denial.

2d. That on August --, 1881, L. A. Mosty and R. E. McAnulty were doing business as partners in buying and selling cattle, and were such partners until about November 1, 1881. That during the partnership, in payment for cattle, Mosty executed to Wells his promissory note for $4,300, dated August 20, 1881, payable thirty days after date and drawing ten per cent. per annum interest. That said cattle were bought and used by said partnership, and that by agreement between Mosty and McAnulty the debt due defendant was to be considered as a partnership debt; that the business of said partnership was done in the name of L. A. Mosty; that the note had never been paid except as elsewhere stated in answer; that afterwards Mosty authorized and instructed defendant to go to Denton county, Texas, and get and drive one thousand and eighteen head of cattle to Lampasas county, and hold the same until he, the defendant Wells, could select therefrom a sufficient number at the price Mosty had paid for same, to pay off the note and interest. That the price paid by Mosty for the one thousand and eighteen head of cattle was $8 per head. That relying on the promise of Mosty, he, Wells, went to Denton county, and at great expense drove the cattle to Lampasas, which were the same described in plaintiff's petition, and was holding the same and waiting for the arrival of Mosty and McAnulty to make his selection therefrom and deliver the balance to Mosty and McAnulty, when the cattle were seized and taken from the possession of defendant by the sheriff of Lampasas county, by virtue of the writ of sequestration. That if plaintiff ever acquired any right to the cattle, the same was acquired from Mosty and McAnulty after defendant had taken possession of the same under his agreement.

Defendant also by his answer asked that Mosty and McAnulty be made parties to the suit; that said cattle be ordered returned to defendant to enable him to select a sufficient number at $8 per head to pay off his debt, or that the cattle be decreed to be sold for the satisfaction of the debt; or in the event it should be found that the cattle have gone into the possession of plaintiff, and been removed beyond the jurisdiction of the court, then that defendant have judgment against said plaintiff and the sureties on his replevin bond for the amount of principal and interest due on the note.

Plaintiff filed exceptions and general denial to defendant's answer. The case was tried by the court without a jury, and judgment rendered in favor of plaintiff, that he have and retain from defendant the possession of the cattle; that plaintiff be quieted in his possession, etc.; the judgment reciting that the cattle were taken from the possession of defendant by the sheriff of Lampasas county by virtue of a writ of sequestration issued in this cause; that defendant failed to replevy the cattle, and they were delivered by said sheriff to plaintiff, he giving his replevin bond therefor.

The following were the conclusions of law and facts filed by the court at the request of defendant's counsel:

“1st. I find the following to be the facts: That sometime in September, or about the 1st of October, 1881, L. A. Mosty was indebted to Marshall Wells in the sum of $4,300, and agreed with Wells that if he (Wells) would go from Lampasas to Denton county and get five hundred head of cows, with calves, that he had bought there from Knight & Dawson, and bring them to Lampasas county, he could select therefrom a sufficient number, at $16 for each cow and calf, to pay off said debt. That Wells agreed to do so, and afterwards, on the 8th of October, met Mosty in Fort Worth, and he then received an order on Knight & Dawson for the cattle, signed by Mosty and McAnulty, and went to Denton county and got the cattle, and reached Lampasas county with them on the 13th of November, 1881, and they were seized by the sheriff of Lampasas county by virtue of the writ of sequestration issued in this cause. At the time they were seized they were in the possession of Wells, but he had not selected therefrom any number in payment of his said debt, and he had no bill of sale thereof, but held them only by virtue of said agreement and order.

I find that on the same day that the order was given, L. A. Mosty conveyed by bill of sale all his cattle under herd and on the range to R. E. McAnulty, and received from McAnulty an instrument bearing same date, the two instruments constituting a mortgage. The bill of sale was recorded, but the other instrument was not recorded. On November 2, 1881, at Kansas City, Missouri, R. E. McAnulty conveyed by bill of sale all his cattle in Lampasas county and adjoining counties to G. W. Littlefield.

I further find that after Wells took possession of the cattle in Denton county he claimed to be part owner of the herd.

2d. I conclude that from the above facts that Wells did not acquire any title to or lien on or right of possession to said cattle as against the plaintiff G. W. Littlefield, who has acquired Mosty's title thereto, he not having received a bill of sale or other conveyance thereof, and not having selected and designated any number of cattle in payment of his debt.”

A. G. Walker and Matthews & Wilkes, for appellant, cited Benjamin on Sales, pp. 243, 253-255; Story on Sales, secs. 296 b,i 296 ic (pp. 314, 315), and notes; Story on Ag., secs. 466, 477; 2 Kent's Com., pp. 634, 643; Watts v. Hending, 13 Fla., 523; Russell v. Carrington, 42 N. Y., 118 (1 Am. Rep., 498);Adams v. O'Connor, 100 Mass., 515 (1 Am. Rep., 137);Graff v. Fitch, 11 Am. Rep., 85, and note 90;Mathias v. Sellers, 86 Pa. St., 486 (27 Am. Rep., 723); Ferguson v. Northern Bank of Kentucky, 14 Bush, 555 (27 Am. Rep., 418).

Walter Acker and Fisher & Fisher, for appellee, cited on the proposition that appellant's contract was executory and conferred no right, Cleveland v. Williams, 29 Tex., 205;Woods v. Half, 44 Tex., 633;Dixon v. Meyers, 7 Gratt., 240;Word v. Shaw, 7 Wend., 404;Crowfoot v. Bennett, 2 Comst., 260;McDonald v. Hewett, 15 Johns., 349;Barrett v. Goddard, 3 Mason, 112;Rapelye v. Mackie, 6 Cow., 250;Russell v. Nicoll, 3 Wend., 112;Outwater v. Dodge, 7 Cow., 85;Stevens v. End, 10 Barb., 95;Damon v. Osborn, 1 Pick., 476; Macomber v. Parker, 13 Peck, 175; Handlette v. Tollman, 14 Me., 400; Cushman v. Holyoke, 34 Me., 289; Stone v. Peacock, 35 Me., 385; Golder v. Ogden, 15 Penn., 528;Lester v. McDowell, 18 Penn., 91; Reddle v. Vorman, 20 Pick., 280; Davis v. Hill, 3 N. H., 382;Messer v. Woodman, 2 Foster, 172;Warren v. Buckminster, 4 Foster, 337;Crawford v. Smith, 7 Dana, 61.

WILLIE, CHIEF JUSTICE.

It is a general principle of the law regulating sales of personal property, that when anything remains to be done to the thing sold to identify it or discriminate it from other things, the sale is not complete. 1 Pars. on Con., 527; Blackburn on Sales, 152; Benjamin on Sales, §§ 311 a, 319.

This rule admits of many qualifications, and if the clear intention of the parties is that the property shall pass notwithstanding something remains to be done to it before it is definitely ascertained, the sale will be considered executed. Benj. on Sales, § 311.

It seems, also, that where possession is given to the buyer, and the act necessary for the designation of the articles sold is to be performed by him and not by the seller, title would pass absolutely to the purchaser. 1 Pars. on Con., 527; Farling v. Boxton, 6 Barn. & Cress., 360; Russell v. Carrington, 42 N. Y., 124; Blackburn on Sales, 152; Benjamin on Sales, § 358; Page v. Carpenter, 10 N. H., 77.

In the last cited case a quantity of goods were constructively delivered to the buyer, with the understanding that, if they were not more than he had bargained for, he might keep them all; if they were more, the seller was to have the balance. A creditor of the vendor attached the remainder of the goods after a small portion of those purchased had been set apart by the buyer. The court held that the contract was executed, and not executory, and that portion of the goods which...