Williams v. Gray

• Decision Date: 31 October 1866
• Citation: 39 Mo. 201
• Parties: ALEXANDER WILLIAMS, Appellant, v. MELVIN L. GRAY, ADMINISTRATOR OF AUGUSTUS H. EVANS, Respondent.
• Court: Missouri Supreme Court

39 Mo. 201

ALEXANDER WILLIAMS, Appellant,

v.MELVIN L. GRAY, ADMINISTRATOR OF AUGUSTUS H. EVANS, Respondent.

Supreme Court of Missouri.

October Term, 1866.

Appeal from St. Louis Circuit Court.

G. P. Strong, for appellant.

I. To constitute a delivery in this case it was necessary that Evans should relinquish his claim to the property sold as owner and that Williams should assume control of it, or that some act should have been performed by the seller which by the consent of both parties should be regarded as a surrender of possession by the seller, and an acceptance and possession by the buyer. Without such delivery the sale was incompete--2 Sto. on Cont. §§ 799, 800 b, 801 a, 805, 809, 810; Long on Sales, 275, 276, 286; Hart v. Tyler, 15 Pick. 171; Whitney v. Linde, 16 Vt. 579; Cobb v. Haskell, 14 Me. (2 Shep.) 303; Bailey v. Ogden, 3 John. 389, 419.

II. The court below erred in not submitting the question to the jury, whether or not there was an understanding or agreement between the parties that Williams was not to receive the negroes until he had got a boat.

The instructions given for defendant exclude altogether all idea of any agreement about the time of delivery. The court ruled that if the money had been paid and Evans ordered the jailer to deliver the negroes, this was a good delivery, even though there might have been a clear and undisputed agreement that no delivery should be made until a future period.

The authorities cited by defendant, so far as examined, all affirm the proposition of plaintiff, that there must be an assent express or implied on the part of the buyer to make any particular acts amount to a constructive delivery, and that such acts will not constitute a delivery unless there be such assent.

M. L. Gray, for respondent.

I. Delivery by vendor to vendee of order on person holding property is a sufficient delivery to pass title--Long on Sales, (Rand's ed.) pp. 285-6; Chit. on Cont. (7th Am. ed.) 390, note 2, and authorities cited; Id. 378; 3 Caines, 182, and note a on p. 183; 5 J. R. 335; 15 Mo. 101; 2 Esp. 598; 7 Taunt. 278; 9 Pick. 347; 29 Penn. 356; Sto. on Sales, §§ 311-12; Hill. on Sales, ch. 7, tit. Delivery, §§ 9-12 & 25; 2 Cai. 38; 2 Duer, 318, 326; 10 Pick. 454, 458-9.

II. Payment of purchase money on bargain struck vests title in vendee--2 J. R. (per Thompson J.) 16; 7 Cush. 268, 272, 274; 8 How. (U. S.) 384; 7 Ark. 197.

III. Where vendor has no further act to do, title passes--7 East, 558; Sto. on Sales, §§ 298-301.

WAGNER, Judge, delivered the opinion of the court.

Williams, the appellant, sued Evans, the respondent, claiming the sum of twenty-five hundred dollars as damages for the alleged non-delivery of the two slaves, named Isham and Judy Ann, which he alleged he had purchased of the respondent for the sum of nineteen hundred and fifty dollars cash paid for the same.

From the record, the facts appear to be that the slaves had been arrested by order of respondent and committed to the custody of the jailer of St. Louis county as his property. Whilst they were in jail the appellant purchased them from the respondent for the sum of nineteen hundred and fifty dollars, twelve hundred dollars of which was paid to respondent and seven hundred and fifty dollars was paid to two men by the name of Newcomb and Duvall, by direction of respondent, for their services in hunting up and procuring the arrest of the slaves.

When the money was paid, the respondent executed and delivered to the appellant a bill of sale conveying the slaves; and afterwards, both respondent and appellant together with Newcomb and Duvall went to the jail where the slaves were confined, to settle with the jailer and pay him his fees for keeping them. When the jail fees were paid, the respondent informed the jailer that he had sold the slaves to appellant, and ordered him to deliver the same to him (the appellant) whenever he called for them, to which the jailer assented. The slaves were in another apartment, and were not produced in the actual presence of the company or the parties. The appellant left them in the possession and custody of the jailer until he could engage passage on a boat to transfer them to his home in Nashville, Tenn. Having succeeded in finding a boat destined for Nashville, in a short time and on the same day he returned to the jail and demanded of the jailer possession of the slaves, but the jailer, acting under instructions of the sheriff, refused to deliver them. It seems that the slaves had instituted suit in the St. Louis Circuit Court for their freedom, and in pursuance of the law the court had made an order to have them hired out, and forbidding their being removed from its jurisdiction till the suit was determined. The order was not served till after the departure of the appellant for the boat, and, had it not been for that, the jailer states that he would have delivered the slaves to him on his return, when demanded. The appellant then commenced this proceeding against the respondent for non-delivery of the slaves. The court below, by its instructions, held that the delivery was complete, and that the property passed to the vendee; and from this decision the appeal is prosecuted. This is really the only question in the case.

It is held by the adjudged cases, which are very numerous, and also by the elementary writers, that when the seller has performed all that is required of him by the terms of the contract, and delivery alone remains to be made, the property vests in the buyer so as to subject him to the risk of any accident which may befall the subject matter of the sale.--Sto. on Sales, § 300; Willis v. Willis, 6 Dana, 48; Sweeney v....