Allen v. Hollis , 31 Ga. 143 ( 1860 )

By the Court.

Lumpkin, J.,

delivering the opinion.

Some negotiations had taken place between these - parties, respecting the sale of a family of negroes, to wit: a woman and two children, owned by Hollis, and which Allen proposed purchasing. We learn from the letter, written by Allen to Hollis, that Allen had offered fifteen hundred dollars for the slaves. Hollis agrees to accept Allen’s offer. And this is shown by the letter, written by Allen to Plollis, dated 26th September, 1858, in which he says: “Yours of the 19th was handed me by Lew yesterday, saying, you had concluded to take my offer for Rose and children — that being fifteen hundred dollars — which I shall consider as a trade. You can keep them until I return from the West, say some time in December, at which time I expect to pay you for them.”

This letter is a ratification, by Allen, of the acceptance by Hollis of his, Allen’s, offer. It is argued, that stipulations are added, by Allen, which it does not appear Hollis ever acceded to, namely: that Hollis should keep the negroes till he, Allen, returned from the West, when he expected to pay for them. It may be that this was a part of the agreement between the parties, and that it was inserted in his letter, in order that the writing might contain the whole contract. But, suppose they were new or superadded terms, Hollis, on receiving Allen’s letter, should have repudiated them. Allen writes, that he considers it a trade, and the silence of Hollis amounts to an acquiescence in all the terms stated in Allen’s letter.

Mr. Broom, in his Commentaries upon the Common Law— a book containing more law than any volume of its size extant-^says: “Property in specific chattels may pass without delivery. It will so pass, when, at the time of the bargain, everything is already done, which, according to the intention of the parties, was necessary to transfer the property. The appropriation of the property being equivalent to a delivery by the vendor, and the assent of the vendee to take the specific chattel and pay the price, is equivalent to his accepting possession. The effect of the contract, therefore, is: to vest the chattel in the bargainee.”

The author adds: “Where goods are sold, and nothing is, said, as to the time of delivery, or the time of payment, and everything the seller' has to do with them is complete, it is here, as a general proposition, that the property vests in the buyer — the seller being bound to deliver them whenever they are demanded, upon the payment of the price — the buyer having no right to the possession of the goods till he pays for them.” Pages 409-410. And numerous authorities are cited in support of this position.

Suppose, then, the contract in this case had been silent, both as to the time of delivery and the time of payment, still nothing remaining to be done by Hollis, the property would have vested in Allen, still he must pay or tender the price, before he would have been entitled to the possession. But a loss, accruing under these circumstances, would fall upon Allen, and not upon Hollis.

■ But that is not this case. Here, the time of delivery and of payment are specified by the buyer, and not objected to by the seller. And this was such an appropriation of the property as was, to all legal purposes, equivalent to a delivery.

We concur, therefore, with the Circuit Court, that the verdict of the jury was contrary to the testimony, the law and the charge of the Court.

JUDGMENT.

Whereupon, it is considered and adjudged by the Court that' the judgment of the Court below be affirmed.