
    Sloan v. Kingore and Another.
    
      Á. sold to B. nine cribs of corn, at 20 cents a bushel, with a warranty that they contained 2,500 bushels, and an agreement that, if they did not, A. would supply the deficiency. The sum to be paid for the 2,500 bushels was agreed on, and time given for the payment; and the cribs of com were left with A., as B.’s agent, to be taken care of for B. Held, that, as between A. and B., the sale was complete. Held, also, that B. had no ■lien on the com. Held, also, that, supposing there was not such a change of possession as is contemplated by s. 8, c. 33, R. S. 1843, yet even as between B. and a subsequent bona fide purchaser from A., the sale to B. was valid.
    
      Friday, December 24.
    ERROR, to the Fountain Circuit Court.
   Blackford, J.

On the 10th of March, 1850, Joseph L. Sloan brought an action of replevin, in the Fountain Circuit Court, against John Kingore and Chauncey Scott. Kin-gore made default. Scott pleaded property in himself. The plaintiff replied that the property was his. Verdict and judgment for the defendants.

The facts are as follows: On the 29th of December, 1849, Kingore, at a certain farm in said county on which he resided, proposed to sell to one Glover 2,500 bushels of corn, and showed him nine cribs of com there situate. Kingore said that the cribs had been measured, and that they contained 2,500 bushels. Glover said he did not believe the cribs contained that quantity. Kingore said that if on measurement the cribs failed to measure 2,500 bushels, he would make up the deficiency out of his barn. Glover was the agent of Sloan, the now plaintiff, and told Kingore, that he was buying the corn for Sloan. Glover then bought for Sloan, from Kingore, 2,500 bushels of corn at (as the witness said) 21 cents a bushel; Kingore agreeing that if said cribs, on being measured, did not contain 2,500 bushels of corn, he would make up the deficiency out of his barn. Kingore and Glover then went to the cribs, and after they had examined them, Kingore said to Glover, as agent of Sloan, that from that time forward the corn in those nine cribs was the property of and at the risk of Sloan, and that in case of loss or damage by storms, thieves, or otherwise, the loss was to be Sloan’s, and not his, (Kingore’s). Glover then took possession of the cribs of corn as the property of Sloan and as his agent, and in pursuance of said purchase, with the understanding with Kingore that any deficiency was to be made up out of Kingore’s barn. Glover, as said agent, then employed Kingore to take care of the corn, and, if any boards blew off of the cribs, Kingore was to put them on and secure the corn from the weather, and be paid for his trouble. At the time of this contract, Kingore was indebted to Sloan for money secured by some promissory notes given by Kingore and assigned to Sloan, one of which was for 13 dollars and some cents; which notes formed a part payment on the contract, and were, in pursuance thereof, delivered up to Kingore on the 5th of June, 1850. The corn so sold by Kingore to Sloan, is the same corn in controversy in the present suit. Glover made a memorandum of the contract at the time, which, as he swears, contains substantiálly the contract between Kin- gore and Sloan. That memorandum states that, on the 29th of December, 1849, said Sloan bought of Kingore 2,500 bushels of corn, then delivered to Sloan in the pens on the farm occupied by Kingore, at the rate of 20 cents a bushel, of which sum 25 dollars were to be paid oh the 15th of February, 1850, and the residue, 425 dollars, on the 1st of August, 1850.

The defendant, Scott, on the 20th of February, 1850, bought of Kingore six cribs of corn, agreeiug to take them at 1,600 bushels, at 25 cents a bushel.

We are of opinion that these facts sustain the suit, Scott contends that the sale to the plaintiff could not be complete until the corn in the cribs was measured. The law on the subject is, that if any material act should remain to be done on the part of the seller, previously to the delivery of the goods, the property will not pass to the vendee until such act shall have been done. Williams on Personal Property, 36. But that rule does not apply to this case. Plere the nine cribs of corn were sold and ac tually delivered by Kingore to Sloan at so much a bushel, with a warranty that they contained 2,500 bushels, and an agreement that, if they did not. the seller would supply the deficiency. The sum to be paid for the 2,500 bushels, namely, 450 dollars, was. agreed on, and time given for the payment. The cribs of corn were left with Kin-gore, merely as Sloan’s agent, to be taken care of for his principal. These acts rendered the sale of the nine cribs of corn complete, as between Kingore and Sloan, and take the case out of the above-mentioned rule. The corn, it is true, was to be subsequently measured, but that was only to ascertain whether the seller’s warranty was complied with. The same acts also deprived the seller of any lien, which he might otherwise have had, for the unpaid price of the corn.

But as Scott may be a bona fide purchaser for value, we must examine whether his purchase can derive any aid from the circumstance that the corn was left by Sloan in Kingore’s possession. We have a statute on the subject, which must determine this point. The statute provides that a sale of goods, if not followed by an actual change of possession, will be presumed fraudulent as to subsequent purchasers in good faith, and be conclusive evidence of fraud, unless it appear that the sale was made in good faith, and without intent to defraud such purchasers. R. S. p. 590. Now, supposing that there was not, in the first sale, such a change of possession as the statute contemplates, that circumstance will not affect this case. The reason is, that the evidence sufficiently show's that the first sale w'as made in good faith and without any fraudulent intention.

R. A. Chandler, for the plaintiff.

H. S. Lane and S. C. Willson, for the defendants.

Per Curiam.

The judgment is reversed, and the verdict set aside with costs. Cause remanded, &c.  