Barrow v. Window

Citations

• 71 Ill. 214

Syllabus

<p>1. Bargain and sale—vests property in the buyer. The words “bargained and sold” have a settled legal meaning, and import a sale which vests the property in the buyer.</p> <p>2. An averment in a declaration that the defendant bargained for and bought of the plaintiff, and that the plaintiff sold to the defendant certain specified articles, amounts to one of a sale of specific articles, which, as between the parties, passed the property in them to the defendant, although the possession remained in the plaintiff.</p> <p>3. By a regular sale, even without delivery, the property is so absolutely vested in the vendee, that if it is afterwards injured in the vendor’s custody, without his fault, he is still entitled to the price, because by the contract the property is in the vendee; and where the vendor retains the custody of the article after it is sold and the property completely vested in the vendee, the vendor is considered a bailee or trustee, for the use of the vendee, and subject to the doctrine of bailment and responsible for ordinary neglect.</p> <p>4. But in such case, if the article is retained by the vendor awaiting payment of the purchase money or price, he must deliver or offer to deliver before he can maintain an action for the price, unless the property is destroyed without any fault of his, in which case he is excused from delivery, and may maintain his action.</p> <p>5. Pleading. In an action for the price of a specific lot of sheep, bargained and sold to the defendant, but to be delivered and paid for in the future, where the plea does not traverse the bargain and sale, it admits it, and the effect is to admit that the title to the sheep had vested in the defendant; and a plea setting up injury, occasioned to the sheep by the fault of the plaintiff whilst in his possession, and after the sale, without showing how many and to what extent the sheep were injured, and what the fault of the plaintiff consisted in, is bad, and a demurrer to a replication to