
    SLATON et al. v. DAVIS.
    No. 16695
    Opinion Filed May 25, 1926.
    I. Sales — Delivery as Decisive of Rights of Rival Purchasers.
    Delivery of possession is necessary in a conveyance of personal chattels, as against every one hut the vendor, and when the same goods ¡aire sold to! two different persons by conveyances equally valid, he who first lawfully acquires the possession will hold it against the other.
    Same — Payment 'of Price not Decisive.
    AVhile it is well settled that, as be’.<ween the parties a delivery is not essential to a transfer of title, the genera! rule is that as against creditors of or subsequent purchasers from the seller, there must he a delivery of the goods, and it does not affect this rule that the price has been paid, or notes given therefor.
    (Syllabus by Maxey, C.)
    Commissioners’ Opinion, Division No. 1.
    Error from District Court, Okmulgee County; Charles O. Smith, Assigned Judge.
    Action in replevin by AY. R. Slaton and Doy D. Slaton against R. M. Davis. Judgment for defendant, and plaintiffs appeal.
    Affirmed.
    Geo. C. Beidleman, for plaintiffs in error.
    >r. A. Davis, for defendant in error.
   Opinion by

MAXEY, C.

Plaintiffs brought replevin to recover one certain hake oven from the defendant. It appears irom the pleadings and the evidence1, that the Bennett Oven Company of Battle Creek, Mich., sold the oven to the Betty Ann Baxcery of Okmul-gee, and .that the Betty Ann Bakery defaulted in payment to the Bennett Oven Company, and the ¡company entered into an oral eon-■tract to sell said bake oven to the defendant. R. M. Davis; ana on the 9th day of August, 1924, a Mr. Strate, a representative •of the Bennett Oven Company, entered into .a contract to sell said oven to- Slaton Brothers. whereby they were to pay $100 c..sh, .and $25 a month until the purchase price oí $725 was paid. Slaton Brothers paid the $100 cash, and gave their note 3or the deferred payments, and on the same day, the •same agent of the Bennett Oven Company contracted to sell said clven to' the deiend-■ant, R. M. Davis, In which contract Davis agreed to pay $200 cash and $50 a month, until the balance was paid. This, as Davis •contends, was simply carrying out their ©ral .agreement that they had made sometime before. Davis took possession of the even at •the time he entered into the oral contract and was in possession of it ac the lime the Bennett Oven Company contracted to' sell- to Slaton Brothers, and had possession of it .at the time he, Davis, bought it. Under the terms of the contract with Slaton Brothers, the sale had to be approved by the Bennett •Oven Company before it became effective: and about the 14th day of August, Strate, the agent of the Bennett Oven Company, notified Slaton Brothers, that he had received a telegram from the Bennett Oven Company saying his contract had been approved. On i lie l(jth day of August, Slaton Brothers, and a fellow by the name of Think, who was .going to haul the oven from Davis’ pmee to Slaton Brothers, went to Davis’ place to get the oven, and Davis refused to let them have it, saying that he had bought the oven and paid $200 cash on it, and given his notes, $50 a month until the balance was paid, so Slaton Brothers never got possession of it; and on August Í6, 1924, Mr. 6. R- Horner, attorney for the Bennett Oven Company, addressed the following letter to Slaton Brorh-ers:

“August 16. 1924.
“Slaton Bros. Bakery, Okmulgee, Okla. Centlemem; Before Mr. Strate left town yesterday evening he advised me to write you stating that his company could moc make delivery of the oven covered by your order of August 9th, and left with me your check and 14 notes, with instructions to return the same to you. Mr. Strate regretted very much that conditions arose which prevented his' company from fulfilling the order. In returning your check and the notes to you, I am only acting as his attorney and under his advice. Very truly yours.”

Slaton Brothers afterwards brought a re-plevin suit to recover the oven from the defendant. Davis. There was an attempt on the part of the plaintiff to show that Davis had notice of the sale to Slatcm Brothers before he bought it, but in' this particular they failed, as Davis’ testimony was the only testimony offered on the 'question of the notice, and he flatly denied .any knowledge of the sale to Slaton Brothers.

At the conclusion of the trial of the ease, the court entered judgment lor the defendant, and it is from this judgment that plaintiffs have appealed.

Plaintiffs in their brief cite a number of autheirities on the question of one who purchases with notes, hut the trouble with tnese authorities is that none of ibam apply to real estate. In this case, there is no proof that Davis had any notice of the sale to Slaton Brothers, so- tlia-t the authorities are not applicable to’ tbe fa¡cts in this case.

Counsel for defendant in error cites a number of authorities iu support of the general rule, citing from the ease of Dan. ear v¡ Sumner, 17 Mass. 110, from the Supreme Court of Massachusetts, where the court announced the following rule;

“The 'general rule is perfectly well established, that the delivery of possession is necessary in a conveyance of personal chattels. as against every one but the vendor. When the same goods are sold to two different persons, by conveyances equally valid, he who first lawfully acquires the possession will hold them against the other. This principle is recognized in the case of Lamb et al. v. Durant, 12 Mass. Rep. 54, and in Caldwell et al. v. Ball, I. D. & E. 205. The latter indeed was a case, not of actual deliv-erv of godds to either party, but of delivery of tbe bill of lading. There were two biils of lading, signed at different times by the master of the ship; and the party who first ob't'lned one of them by a legal titile from ihe owner of the goods, was held to< have the best right, although the hill of lading, under which he claimed, was made the last. The indorsement and delivery of the bill of lading, in such a case, is equivalent to the actual delivery of the goods.”

The following rule is laid down in 35 Cyc. 104 :

“As to Third Persons: While it is well settled that, as between the parties a delivery is not essential to a transfer of title, the general rule is that as against creditors of or subsequent purchasers from the seller, there must be a delivery of tbe goods, and it does not affect this rule! that the price has been paid, or notes given therefor.” 24 R. C. L. 49, 50.

It is ele'ar from the foregoing authorities, that Slaton Brothers never acquired title and right of possession to! the oven in question, as against the title -and actual possession and the purchase of defendant, Davis, as they at no time had possession o-f the oven, while Davis had- possession oí it at tlie time he bought it, and retained .possession. There ■is some discussion in the brief abfctut good faith. If there is any one guilty of bad faith in the transaction, it was the Bennett Oven Company, and plaintiff’s remedy is found in section 5984, Comp. St. 1921, which reads as follows:

Note.-See under (1) 35 Cyc. p. 356;

“The detriment caused by the breach of a seller’s agreement to deliver personal property, the price of which has nob been fully paid in advance, is deemed to bei the excess, If any, of the value of the property to the buyer,, over the amount which would have been due 'to the seller under the contract, if it had been fulfilled.!”

It is dlear that Slaton Brothers’ remedy is against vhe Bennett Oven Company, if they have a causa of action, and not agaiiist Dayis. The judgment of the trial com», is, therefore, affirmed.

By the Court: It is so ordered.  