Opinion
No. 43047.
May 11, 1964.
1. Exchange of property — passing of title — jury question.
Whether buyer, upon delivery of sawmill machinery, was ready and willing to deliver to seller's truck driver a used engine to be used as trade-in, whether driver did not desire to take engine back at that time and whether it was understanding of parties that seller would send his truck to pick up used engine were jury questions, in action brought by seller, after used engine was destroyed by fire while attached to buyer's machinery, for amount that was to be allowed on trade-in.
2. Exchange of property — passing of title — evidence — title to engine used as trade-in — passed to seller prior to its destruction by fire.
Evidence sustained finding that title to used engine to be used as trade-in in connection with purchase of new machinery had passed to seller of machinery prior to its destruction by fire when it was still attached to buyer's old machinery, in action by seller for amount that had been allowed for trade-in.
3. Sales — passing of title — as between seller and purchaser — intention of parties controlling.
Principal factor controlling whether title to chattel passes is intention of seller and buyer, where such intention is not expressed clearly by contract.
4. Sales — passing of title — for jury where intention not expressed clearly by contract.
Ordinarily question as to when title to chattel passes from seller to buyer where such intention is not expressed clearly by contract is one for jury.
5. Sales — passing of title — constructive delivery.
There may be complete delivery of goods sufficient to pass title to buyer although they remain in possession of seller if buyer assumes control of property reasonably indicating change of ownership and nothing further remains to be done by either party to complete sale.
6. Sales — passing of title — constructive delivery.
It is not essential that actual physical delivery of chattel be made to buyer in order to complete delivery for purposes of transfer of title.
Headnotes as approved by Gillespie, J.
APPEAL from the Circuit Court of Pike County; TOM P. BRADY, J.
Norman B. Gillis, Jr., McComb, for appellant.
I. The verdict was against the overwhelming weight of the evidence, without any support of competent evidence, and manifestly wrong. Morel v. Solomon, 203 Miss. 356, 35 So.2d 315; Smith v. Nevitt, 1 Miss. 371; 55 C.J., Sales, Sec. 325; 77 C.J.S., Sales, Sec. 155.
II. It was undisputed that the engine was physically attached to the sawmill in such a manner as to require additional work to disconnect it.
III. It was undisputed that the trade-in engine was to be delivered to appellant only after the new mill was installed and in operation.
IV. It was undisputed that the appellee Brent actually did retain the engine in continuous use and attached to the sawmill until it was destroyed by fire. Great Atlantic Pacific Tea Co. v. Davis, 177 Miss. 562, 171 So. 550.
V. The Court should have granted plaintiff's request for a peremptory instruction and, failing that, should have set aside the verdict and granted the motion for a new trial. Justice v. State, 170 Miss. 96, 154 So. 265; Mobile O.R. Co. v. Johnson, 165 Miss. 397, 141 So. 581; Newton v. Homochitto Lumber Co., 162 Miss. 20, 138 So. 564.
Roach Roach, McComb, for appellee.
I. The verdict of the jury was not against the overwhelming weight of evidence, nor was the verdict without support of competent evidence, nor was it manifestly wrong. Devoe Reynolds Co. v. Futch-Flowers Motor Co., 19 Ala. App. 610, 99 So. 750; Johnson v. Tabor, 101 Miss. 78, 57 So. 365; Jones v. Ballard, 19 Ala. App. 460, 98 So. 40; Morel v. Solomon, 203 Miss. 356, 35 So.2d 314; 77 C.J.S., Sales, Sec. 155.
II. Title to trade-in passed to appellant, Taylor Machinery Company, on March 23, 1961, when the original order for the new equipment had been placed, and remained so at the time of loss of the trade-in as established by the intention of the parties from the evidence. Merchant's Co. v. Tallege Grocery Co., 217 Ala. 534, 116 So. 356; 46 Am. Jur., Sales, Sec. 413.
III. The lower court was correct when it overruled the request of appellant for a peremptory instruction. Mock v. Natchez Garden Club, 230 Miss. 377, 92 So.2d 562; Newton v. Homochitto Lumber Co., 162 Miss. 20, 138 So. 564; Pittman v. Goudelock, 237 Miss. 543, 115 So.2d 303; Pullin v. Nabors, 240 Miss. 864, 128 So.2d 117.
IV. The Court was preeminently correct in not sustaining the motion for a new trial. Caldwell v. Smith, 200 Miss. 711, 28 So.2d 657; Jackson City Lines v. Harkins, 204 Miss. 707, 38 So.2d 102; Leflore v. Justice, 1 Sm. M. (9 Miss.) 381; McAlexander v. Puryear, 48 Miss. 420; New Orleans N.E.R. Co. v. Lewis, 214 Miss. 163, 58 So.2d 486; Triangle Amusement Co. v. Benigno (Miss.), 35 So.2d 454.
This is a suit by the Taylor Machinery Corporation of Jackson, hereinafter called Taylor, against Bill Brent, hereinafter called Brent. The jury returned a verdict for the defendant and the plaintiff appealed.
On March 23, 1961, an oral agreement was made between Vickers, as agent of Taylor, and Brent whereby Taylor would sell to Brent certain sawmill machinery for the sum of $6939. It was agreed that Brent would be allowed $1896 for the trade-in of a used diesel engine then being used by Brent. It was agreed that the used engine which was being traded could be used by Brent until such time as the new machinery was set up ready for operation. Pursuant to this agreement, the new machinery was delivered to Brent's sawmill site in Pike County on May 9, 1961. On May 12, Vickers delivered the invoice to Brent. The invoice showed the various items sold, together with the purchase price of each item and a credit for the tradein of the used engine in the amount of $1896, leaving a balance due of $5,093, which, according to the original agreement made on March 23, was to be paid in cash upon delivery of the machinery. Brent paid the cash due on May 12, less an amount withheld pending receipt of a warranty on a part of the machinery, which amount was subsequently paid. The used engine was still being used by Brent on May 12, and was still attached to Brent's old machinery on May 14th, the used engine burned in a fire that destroyed certain other property belonging to Brent.
(Hn 1) After Taylor learned of the burning of the used engine, it prepared and sent to Brent a revised invoice dated May 17, 1961, which did not show the credit of $1896 for the used engine. There was no specific agreement as to the date Taylor was to take title to the used engine traded in by Brent, but the jury was warranted in finding that Brent was ready and willing to deliver to Taylor's truck driver the used engine at about nine o'clock on the night of May 9th when the new machinery was delivered, but that Taylor's driver did not desire to take the engine back to Jackson that night. The jury was also justified in drawing the inference that the understanding of the parties was that Taylor would send his truck to Pike County to pick up from the sawmill site the used engine and take it to Jackson.
(Hn 2) The sole question for decision is whether title to the used engine passed to Taylor before it was burned on May 14, 1961. This is the issue presented to the jury on proper instructions. We are of the opinion that the jury was justified in finding that title to the used engine had passed to Taylor prior to its destruction by fire.
(Hn 3) The principal factor controlling the question as to when title to a chattel passes from the seller to the buyer is the intention of the parties where such intention is not expressed clearly by the contract. (Hn 4) This question is ordinarily one for the jury. 46 Am. Jur., Sales, Sec. 413, pages 585-586. In the instant case, nothing was to be accomplished after May 12, insofar as the passing of title to the trade-in engine was concerned, if anything, except delivery. (Hn 5) There may be a complete delivery of goods although they remain in possession of the seller if the purchaser assumes such control of the property as reasonably to indicate a change of ownership and nothing further remains to be done by either party to complete the sale. 77 C.J.S., Sales, Sec. 161, p. 886. (Hn 6) It is not essential that actual physical delivery of a chattel be made to the purchaser in order to complete delivery. In the early case of Smith v. Nevett, 1 Walk. Rep. 370, it was held that where nothing remained to be done by the vendor there was a constructive delivery of the property. In another old case, Stamps v. Bush, 8 Miss. 255, a debt was paid with 73 bales of cotton which were segregated on Stamps' gin lot, weighed, and the value computed to within a few dollars of what he owed Bush. Thereupon Stamps told his overseer to haul the cotton to the river bank. The cotton burned before anything more was done and the Court held there had been a constructive delivery of the cotton and the debt discharged. There was nothing further to be performed by Stamps except do the gratuitous act of delivering the cotton from the gin lot to the river bank.
In the instant case, it was permissible for the jury to find that it was the understanding of the parties that Taylor would take title to the used engine when the new machinery was delivered and paid for. Vickers, on behalf of Taylor, agreed that the purchaser could thereafter use the used engine until the new machinery was in operation. This was an act of dominion and control over the used engine. Vickers also gave the purchaser permission to sell the used engine and pay over $1896 in cash to the seller. This was also an act of dominion and control and a circumstance tending to show the intention of the parties that title would pass to Taylor when the new machinery was delivered. When the used engine was destroyed by fire, all of the terms of the sale had long since been agreed upon. The bargain had been struck and everything that Brent agreed to do had been done. The contract of sale as far as the used engine was concerned was executed upon the constructive delivery thereof prior to May 14th, and title was vested in Taylor Machinery Corporation at the time of the fire. At least the jury was justified in so finding.
The case was well tried, the jury was properly instructed, and we do not find any reversible error.
Affirmed.
Lee, C.J., and Ethridge, McElroy and Rodgers, JJ., concur.