Opinion
6 Div. 724.
March 24, 1927.
Appeal from Circuit Court, Jefferson County; Richard V. Evans, Judge.
F. D. McArthur, of Birmingham, for appellant.
No delivery of the hay was made to the defendant, and there could be no recovery. 10 C. J. 253; Code 1923, § 10092; Bowdon v. A. C. L., 148 Ala. 29, 41 So. 294; 18 C. J. 477; U.S. v. McCready (C. C.) 11 F. 225.
J. P. Mudd, of Birmingham, for appellee.
The title to property passed from the seller to the buyer according to the intention of the parties. 35 Cyc. 276; 1 Williston, Contr. (2d Ed.) 525, 602. Destruction of the property was no defense in this case. Howard v. St. L. J. Co., 146 Ky. 160, 142 S.W. 241.
Looking to the whole evidence, we think it fairly supports the findings of the trial court and the conclusion that there was a complete and effective delivery of the car of hay at defendant's warehouse in North Birmingham, in conformity with the seller's obligation in the premises, from which it resulted that title passed to the buyer, accompanied by the risk of loss. Capehart v. Furman, etc., Co., 103 Ala. 671, 16 So. 627, 49 Am. St. Rep. 60; Ala. Nat. Bank v. Parker, 153 Ala. 597, 601, 45 So. 161. Appellant's argument is limited to a negation of the fact of efficient delivery as found by the trial court.
But, under the evidence before the court, delivery was not essential to the passage of the title from the seller to the buyer. Where the goods sold are in the possession of the seller, and are definitely ascertained and agreed upon — nothing remaining to be done to determine their price, quantity, or identity — the sale is complete, and the title passes by force of the contract itself, in the absence of anything to show a contrary intention. Magee v. Billingsley, 3 Ala. 679, 693; Screws v. Roach, 22 Ala. 675, 676; Hudson v. Weir, 29 Ala. 294; Darden v. Lovelace, 52 Ala. 289; Lehman Co. v. Warren et al., 53 Ala. 535, 540; Mobile Savings Bank v. Fry, 69 Ala. 348; Pilgreen v. State, 71 Ala. 368; Foley v. Felrath, 98 Ala. 176, 180, 13 So. 485, 39 Am. St. Rep. 39; Cook Laurie Contracting Co. v. Bell, 177 Ala. 618, 628, 59 So. 273.
Here every requirement for an executed sale was present, and the resulting presumption that the title was intended to pass, and did pass, presently, by the agreement of purchase and sale, was not impaired by any contrary tendency of the evidence.
Under the authorities above noted, the title to this carload of hay passed to defendant by and at the time of the sale, irrespective of the question and fact of delivery, and the loss falls on defendant.
It results that judgment was properly rendered for plaintiff for the stipulated price, and the judgment will be affirmed.
Affirmed.
ANDERSON, C. J., and THOMAS and BROWN, JJ., concur.