S. A. Stone Co. v. Davis Moore , 175 S.W. 772 ( 1915 )

The trial court filed the following conclusions of law, which we adopt:

"(1) I conclude that the title to said cattle passed to the plaintiffs by the written contract executed by the parties on the 30th of April, 1910, and that the condition in said contract providing for the feeding of said cattle was an independent condition.

"(2) I conclude that, under the facts and circumstances of this case, the plaintiffs were not entitled to a rescission of said contract, and that, if they suffered any injury by reason of its breach, their proper remedy would be a suit for damages."

The title to said steers passed to appellants, notwithstanding the fact that they remained in the custody of appellees for the purpose of feeding and pasturing and until the purchase price was paid. See Midland Nat. Bank v. Strickland, 32 Tex. Civ. App. 91, 74 S.W. 588; Barker v. Bushnell,75 Ill. 220; Puckett v. Reed, 31 Ark. 131; McCrae v. Young, 43 Ala. 622; Worth v. Northam, 26 N.C. 102. In Midland Nat. Bank v. Brookland, supra, as shown by the syllabus, where plaintiff sold to defendant a lot of stoves then stored in a warehouse, agreeing that they might remain there until called for, and defendant executed his note for their price, but before the stoves were called for they were destroyed by fire without fault on the seller's part, it was held that in law the delivery was complete, and, the title having passed to the purchaser, he could not resist payment of the purchase price because of such loss. Judge Templeton in said case quotes from Mr. Storey as follows:

"The principle is sound that a continuance of the possession of the vendor does not prevent the delivery being complete if nothing further remains to be done on either side, and the possession is by mutual consent. There is nothing in reason or principle to make the present case different, simply because the bales of cotton remained in the plaintiff's warehouse. It was part of the bargain that they should so remain, and a part of the consideration of the promise."

In Hotchkiss v. Hunt, 49 Me. 221, it is said:

"Where, by the terms of the agreement, or by fair implication therefrom, the article thus sold or resold is to remain in the possession of the vendor for a specific time or for a specific purpose, as a part of the consideration, and the sale is otherwise complete, the possession of the vendor will be considered the possession of the vendee, and the delivery will be complete and sufficient."

See, also, Storey on Sales, § 300.

The fact that the cattle were to be fed on cake during the 30 days that they were to be held in the pasture was not a condition precedent to the passing of title, but was an independent condition or covenant, and the sale, we think, was complete without the performance of such condition. See Springfield Seed Co. v. Walt, 94 Mo. App. 76, 67 S.W. 938; Bladsworth v. Rosenblatt, 20 Misc.Rep. 357, 45 N.Y.S. 931; Dox v. Dey, 3 Wend. (N.Y.) 356; Magnolia Compress Co. v. Smith, 75 Ark. 503, 88 S.W. 563; Eastern, etc., Ry. Co. v. Rand, 16 C. B. 2; Haynes v. Hayward, 41 Me. 488; Neill v. Whitworth, L. R. I. C. P. 684.

The court having found that, notwithstanding the breach of said condition, no substantial injury or damage resulted to appellants therefrom, we therefore conclude that the court did not err in the further holding that no right to rescind existed Finding no error in the judgment of the trial court, the same is in all things affirmed.

Affirmed.