Mathewson v. Belmont Flouring Mills Co. , 76 Ga. 357 ( 1886 )

Jackson, Chief Justice..

The Belmont Flouring Mills Company sued Mathewson, in trover, for 639 sacks of flour. The flour had been ordered by brokers for Dub & Company, .with this direction, “ Ship, as soon as you can, 45 days’ draft, B. Dub & Company,” the flour in question. Dub & Company assigned it to Mathewson, as their assignee, without returning the draft signed, it being sent with the bill of lading and an invoice stating the terms as 45 days’ acceptance. On law and facts, the case was referred to the judge, who held that the plaintiffs were entitled to recover, and this court concurs with him.

The assignee took only the assignors’ title. The assignors, Dub & Company, had no title until the terms were fulfilled, which, through their agents, the brokers, they had made. Upon the signing and return of the draft, the sale was consummated and the title passed, and not before.

Benjamin on Sales, Corbin’s Ed., 1884, page-343, citing 15 Gray, 229; 123 Mass., 143; 126 hi, 482 and other cases. The giving the draft is a condition precedent. Benj. on Sales, pp. 344, 341, 343, 504, 502, 508 and citations. See also Thorpe vs. Fowler, 13 Iowa, 238.

It is well that the law is so. Common sense and a decent regard for morality endorse it. What a fraud on honesty it would be to allow such a transaction as this! To pass title before the goods were paid for by draft according to contract, and thus enable the purchaser, in the teeth of his own contract, to assign property not his to pay his debts, would be to shock the moral sense of all men and shake all confidence in law.

Judgment affirmed.