Opinion
December Term, 1841.
In an action for goods sold and delivered, a delivery, actual or constructive, must be shown. If the goods were bargained for, but the delivery postponed for the happening of some future event or to some future period, the sale was not complete, and the vendor has no right to sue for the purchase money.
ASSUMPSIT for goods sold and delivered, tried at Fall Term, 1841, of MACON, before Manly, J.
No counsel for plaintiff.
Bynum Francis for defendant.
The principal question was as to a wagon alleged to have been sold and delivered at the price of $125. It appeared from the evidence that this article was in the yard of the plaintiff, and the parties were negotiating about the sale of it for some time without any person being present. When they came into the plaintiff's storehouse, the defendant proceeded to purchase certain materials for making harness for the wagon, and desired that they might be put away until he should come for it. The plaintiff then stated that he had sold the wagon for $125, when the defendant remarked that there were no bows to the wagon yet; to which the plaintiff replied, "he had them already sawed, out, and would put them in." It was proved by several witnesses that the defendant afterwards told them he had purchased a wagon from the plaintiff. A witness was then called by the defendant, who swore that the overheard the defendant say, when conversing with the plaintiff in the yard about the purchase of the wagon, that he would take the wagon if something or other (he did not know what) was done to it. The defendant's counsel insisted that the plaintiff could not recover, in this form of action, without proving an actual delivery, or, instead thereof, earnest paid, or some note accepted by the plaintiff as a security for the price; and that if any act remained to be done by the seller, the property would (13) not pass until that act was done. The court instructed the jury to inquire from the evidence whether there was a sale and delivery, and, if so, to find for the plaintiff; that a manual delivery was not necessary; nor was any earnest money or particular form of words required. If the parties agreed, the one to part with and the other to take the wagon, as it then was, and when there was a stipulated price, the sale and delivery were complete, the one acquiring a right to the price and the other a right to the wagon. And in this case the law did not require a bill of sale, memorandum in writing, or payment of any part of the purchase money to make the bargain obligatory. If, on the other hand, the jury should collect from the testimony that the sale was not thus completed, but that, for some reason, the delivery was postponed to the happening of some event, or to some future period, no right to the purchase money would vest in the plaintiff, and the jury should find for the defendant.
The jury returned a verdict for the plaintiff, upon which judgment was rendered, and the defendant appealed.
We admit that there is a difference between a count in assumpsit for goods bargained and sold and one for goods sold and delivered; and that, upon a count of the latter kind, a delivery, actual or constructive, must be shown. But it is not seen that the defendant can derive any advantage from these positions, since, as we understand the directions to the jury, they lay down the same doctrine. They are explicit that if the delivery was postponed to the happening of some event, or to some future period, then the sale was not complete, and the plaintiff would have no right to the purchase money. But the jury have found the delivery, and that terminates all controversy as to the form of action. The only question, then, which can be raised is whether there was evidence upon which it was fit to be left to the jury to find a (14) delivery; and upon that there is no doubt, as it seems to us. The language and acts of the parties at the time of the contract, and when the wagon was immediately before them, might, in the absence of any evidence of a stipulation on the part of the plaintiff to put bows to the wagon as a condition precedent, induce a belief in the jury that the defendant had accepted the wagon in the state in which it then was, and looked to the promise of the plaintiff, as a collateral engagement to furnish the bows. But what was left doubtful, upon that part of the evidence, is cleared up by the subsequent and repeated declarations of the defendant that he had purchased the wagon, and that without expressing any qualification or condition whatever. Supposing this evidence true, as in this proceeding we must, it is plain the jury might, with good reason, find all that was necessary to a complete and executed contract; that is to say, not only a bargain for the wagon, but a delivery of it also.
PER CURIAM. Affirmed.
Cited: Waldo v. Belcher, 33 N.C. 612; Morgan v. Perkins, 46 N.C. 172; Whitlock v. Lumber Co., 145 N.C. 124.