
    Foley v. Felrath.
    
      Action on Account for Goods and, Merchandise Sold.
    
    1.' Definition of sale; when tille does, and does not pass. — A sale is the transfer of the absolute or general property'in a thing for a price in money. If anything remains to be done by either party to the transaction, before delivery, as, to determine the price, quantity or identity of the thing sold, the contract is merely executory, and the title does not pass. If the sale is complete, and the goods perish without the fault of the seller, the purchaser is bound to pay the agreed price.
    2. Difference between option to purchaser, and option to return goods. An option to purchase goods at will, is very different from an option to return them if transferee should not like them; in the first case the title does not pass till the transferee elects to take them, if seasonably done; while, in the other case, the title passes, subject to the right to rescind and return.
    Appeal from Mobile Circuit Court.
    Tried before the Hon. J. T. Jones.
    Pillans, Tokrey & HaNaw, for appellant.
    1. The mailing of Foley’s assent to Eelratli’s letter reconsidering and agreeing to accept the goods on condition named, constituted a complete purchase, and the goods became Eelrath’s, and were at his risk. — Magee v. Billingslea, 3 Ala. 679; Leonard v. Davis, 1 Black. 476-483; Tome v. DuBois, 6 Wall. 548-554; Cleveland v. Williams, 94 Am. Dec. 274.
    The goods were forwarded at Eelrath’s request, so that possession as well as title was in him.' — Allen v. Agee, 3 Am. St. 206; 52 Ala. 252; 71 Am. Dec. 409; 12 Ala. 520.
    2. The reservation by Eelrath of a right to return high-priced goods did not prevent the title passing to him meanwhile. The law is plain on this. — Allen, Bethune & Oo. v. Maury cis Co., 66 Ala. 10-17; Wales v. Howison, 93 Ala. 375; Bretz v. Diehl, 2 Ain. St. E. 706-709; Cldckering v. Bastre.ss, 17 Am. St. 309-311; 2 Benj. Sales, 4th Am. Ed. Corbin, pp. 794-796, §915n. 30.; 3 Am. and Eng. Ency. 433; Gunter v. Lechj, 30 Ala. 691; 1 Pars. Cont. 450 (star page); Lnjon v. Lennon, 106 Ind. 667; Goiter v. State, 91 Ala. 92; Hunt v. Wyman, 100 Mass. 198; Hurd v. West, 7 Cowen752; Busiuell v. B-ichnell, 35 Am. Dec. 262; GocJeer v. Gullifer. 69 Am. Dec. 118; Powder Go. v. Burkhardt, 97 U. S. 110. _ Hence as the goods were lost before the exercise of tlie option to exchange part for other goods, the buyer owes the price. — Garter v. Wallace, 32 Hun. N. Y. 384; Standard Oil Go. v. Van Etten, 107 U. S. 325.
    Faith & Ervin, for appellee,
    insisted that there had been no consummated sale of the goods, testing title in the appel-lee ; that appellee had agreed to accept the goods on certain conditions relating to selecting a part of the goods after they should come into his possession.; that until that event, until he had exercised that right of selection, the title to all the goods remained in the seller, and the loss was therefore his, and not the buyer’s, or appellee’s, citing. — Braddock Glass Go. v. Lrwin, 25 Atlantic B. 490; Millhiser v. Erdman, 98 N. C. 292; s. c., 2 Amer. State B. 334; also, Gopeland v. Bosquet, 4 Wash. C. 0. 588; Lester v. McDowell, 18 Penn. 91; Harris v. Smith, 3 S. & B. 20; Bussell v. Minor, 22 Wend. 659; Whitney v. Eaton, 15 Gray 225 ; Hirshcorn v. Ganney, 98 Mass. 149 ; Seed v. Lord, 66 Maine 580.
   HARALSON, J.

Foley sued Felrath for $502.56, for merchandise, goods and chattels sold by him to said Fel-rath on the 1st of August, 1892; and on open account, and on account stated for like amounts.

It was claimed by the plaintiff, and he so testified, that •he was a manufacturer of gold pens in New York city; that on the 8th March, 1892, he was in Mobile, Alabama, and while there was in the store of defendant, and sold him a bill of goods, in his line, for $502.56; that the goods were, accordingly shipped to the defendant by plaintiff, by the Adams Express Company, for which said Company gave him a receipt; that at the time of the sale, its terms and details were written down by plaintiff, one-half to be secured by defendant’s note, at four months, and one-half at six months, the last note, if all the goods were not sold in that time, might be paid in goods not sold, at defendant’s option; that the sale was absolute, and not conditional ; that defendant, after he received the “goods, notified him that he had returned them by the express company, and afterwards, the company brought the box of goods to plaintiff, and be would not receive tbem, because tbey were defendant’s.

Tbe defendant contradicted tbis evidence of tbe plaintiff, and testified, that plaintiff came into bis store, and representing bimself as a large manufacturer of gold pens and novelties in that line, asked bim to take tbe agency for bim for tbe sale of bis goods in Mobile, and as tbe result of tbeir interview, defendant agreed to accept tbe agency, and that plaintiff should ship bim, as such agent, $500 worth of bis goods for sale; that plaintiff represented that such goods should be “good sellers,” and told defendant, that be would not be required to pay out auy of bis own money for tbe goods, and plaintiff was to send out at bis own expense, private letters and cards, tbe printing to be paid for by defeudant; that lie agreed to take the agency, provided tbe goods shipped were as represented, and be Avas to pay no money; that plaintiff said, that be could not let bis goods go on four months time, unless defendant would give bim a note Avliich be could use as collateral to borrow money, and, on tbe assurance that defendant would not have to pay tbe note, for tbe reason that before it matured, be would have sold goods enough to meet it, be gave bim a note for $250, not as purchase money, but as accommodation, and plaintiff was to send the goods for examination before be would accept tbem; that tbey were to be such as would be salable in tbe Mobile market; that tbe goods afterwards came by express, according to invoice, sent Avitli tbem, but Avere immediately returned to plaintiff, because not such as were promised to be sent, and were old style and unsalable.

A correspondence immediately sprang up between tbem, in Avbicb tbe one contended there was an absolute sale, and be would not receive the goods back, but would bold tbe other responsible for tbeir value; and tbe other, that tbe transaction was not a sale but an agency, and be would have nothing more to do with tbe goods and would not pay for tbem.

Einally, however, as tlie result of tbis correspondence, tbe defendant wrote to tbe plaintiff, under date of April 21,1892, to tbe folloAving effect: “I have reconsidered tbe matter, and will accept tbe goods on condition, that you exchange some high priced goods, which I will return, for cheaper articles, more suitable for tbis market. Please favor me with the retail selling price of said line of goods in tbe North. I do not understand tbe hrvoice you sent me, and, therefore, would like for you to send me another, more explicit, giving tbe net retail price, and tben allow me tbe discount; also, send tbe show case as promised. Let goods come along.”

To this letter, tbe plaintiff, on April 25, after it was received, replied : -‘Thanks. Had much trouble, but all right now. Have sent you show case, and have told express company to deliver your goods. Most are marked and you will find' retail prices in this green circular, as sold by dealers here. You can exchange goods at any time. I was careful to send only good sellers, and if not, will make all to your satisfaction. I will go on mailing private letters as soon as I get answer to this. Open up goods at once, and put out big pen, and push sales, and send me this note, and let us be good friends.”

The evidence tends to- show, that tbe goods were shipped back to defendant by tbe express company, as requested by him, and in transit were lost or destroyed in a wreck. Tbe defendant contends, that tbe loss is tbe plaintiff’s, that there was no delivery of tbe goods, for tbe reason, that before accepting them, be bad tbe right to select from tbe lot such as be would return, according to tbe condition annexed to bis agreement for them to be returned to him, and tbe sale, till this was done, was incomplete. On tbe other band, tbe plaintiff maintains that tbe sale and delivery were complete, and tbe defendant is liable for tbe price of tbe goods, and must, himself, look to tbe express company for damages, if it lias incurred liability for' tbe non-delivery of tbe package.

Tbe evidence tends to show, and it is without conflict, as to tbe point, that tbe same package of goods, and tbe same goods that bad, in tbe first place been shipped to tbe defendant at Mobile by tbe plaintiff — which be received and examined, tbe invoice and prices for which bad been furnished to him by plaintiff, and which be returned to plaintiff as not coming up to representations — were tbe identical package and goods which defendant, upon reconsideration, instructed tbe plaintiff to have returned to him by tbe express company. There was no mistake as to identity, quality and price of goods. There bad been, as we have seen, a spirited dispute between tbe parties, as to tbe character of the transaction between them, tbe plaintiff maintaining all tbe while, that defendant bad purchased tbe goods, and that they were bis property. Tbe defendant finally yielded to plaintiff’s contention and wrote, “I have reconsidered tbe matter, and will accept tbe goods, on condition that you exchange some high price goods, which I will return for cheaper articles, more suitable for this market.” What was it, defendant had reconsidered? It could have been nothing but the very thing the plaintiff had been so pertinaciously pressing on him. — that the goods were sold and delivered to him, that the transaction was no agency, and he was liable and must pay for what he had bought. He yielded the contention, and said “I will accept the goods. Let goods come along.”

A sale has been defined to be “A transfer of the absolute or general property in a thing, for a price in money.” — Benj. On Sale, § 1. If any thing remains to be done by either party to tlie transaction before delivery, as for example, to determine the price, quantity or identity of the thing sold, the title does not vest in the purchaser, and the contract is merely executory. If the sale is complete, and the goods perish, without the fault of the seller, the purchaser is bound to pay the agreed price.—Magee v. Billingsley, 3 Ala. 679: Mobile Sav. Bank v. Fry, 69 Ala. 348; s. c. 75 Ala. 473; Allen, Bethune & Co. v. Maury & Co., 66 Ala. 17; Wailes v. Howison, 93 Ala. 375; Cleveland v. Williams, 94 Am. Dec. 274; 2 Kent, 496.

In Allen, Bethune & Co. v. Maury & Co., supra, we said: “Where, however, goods are sold and delivered, the terms of sale being specified, and the vendee reserves the right to reject or return, the title passes, liable to be divested by the exercise of this option to rescind expressed Avithin a reasonable time.”

In Greene v. Lewis, 85 Ala. 221, it was held, that where a horse Avas sold and delivered to a purchaser, for a reasonable price, to be afteiuvards agreed on, the title at once passed; and the fact that the parties could not afterwards agree on a reasonable price made no difference in the character of the transaction. The court, in passing upon the question, stated, “The rule is settled, that the title to personal property may pass to a vendee, without fixing an absolute price, if the circumstances attending the transaction satisfactorily show such to be the clear intention of the contracting parties.—Shealy v. Edwards, 73 Ala. 175; Wilkinson v. Williamson, 76 Ala. 163. An option to purchase, if the party to whom the goods are transferred should like, is very different from an option to return the goods, if he shoulcl not like them. In the first case, the title Avill not pass until the transferree determines the option, if seasonably exercised ; in the other, the title passes subject to the right to rescind and return, which is in effect a right to re-sell to liis vendor.—2 Benj. on Sales, p. 796, § 915, n. 30; Buswell v. Bricknell, 17 Me. 344; s. c. 35 Am. Dec. 262 ; Hunl v. Wyman, 100 Mass., 198. The case in band was clearly one of a sale with right to rescind and return, as to the high priced goods.

The contract of sale between the parties, as we have seen rested at first in parol, about the terms of which they disputed. They eventually agreed upon its terms, and that agreement is in writing. There could no longer remain any dispute about it, and no parol evidence was needed to construe it. Its construction became a question of law for the court, and not for the jury to determine.—Jones v. Pullen, 66 Ala. 306; Glaghorn v. Lingo, 62 Ala. 230; Bernstein v. Humes, 60 Ala. 582; Guilmartin v. Wood, 76 Ala. 209.

It is unnecessary for us, in the view we take of the case, to consider any of the charges given, to which exceptions were reserved, or any of the assignments of error, except the one based on the request for the general charge in favor of the plaintiff. The evidence is undisputed and in writing, as to what the contract was, and as its proper construction makes it one of sale and delivery of goods, the court should have given the general charge for the plaintiff, as requested.

Beversed and remanded.  