Hunt v. Kellum & Rotan

Citations

• 59 Tex. 535
• 1883 Tex. LEXIS 221

Syllabus

<p>1. Attachment — Sale.— Goods attached on the ground that the defendant had disposed of his property with intent to defraud his creditors; had been sold by him before attachment to a third party with no understanding as to when tiie consideration should be paid; they were received by the agent of the purchaser, who paid in part for them and shipped a portion of them to his principal; the agent af.erwards agreed to permit a third party to retain as trustee the remaining portion of the goods until the purchaser paid for them as “per agreement.” There was no effort before the attachment to rescind the sale by tendering back the consideration paid. The question being whether there had been, as to attaching creditors, ,a sale, held,</p> <p>(1) There being no understanding as to when the consideration was to be paid, the presumption of law is that it was an unconditional sale, taking effect immediately, and dependent for its completion on nothing to be afterwards done.</p> <p>(¿) A sale of personal property is completed by a payment of the purchase money, or when the purchaser takes the thing sold into possession.</p> <p>(3) The effect of the detention of the goods not shipped by a trustee was to make the transaction, to that extent, a pledge of the goods detained to secure the debt created by their sale. The sale of the goods remained as complete as if the unpaid purchase money had been secured by a pledge of other property.</p> <p>(4) Had the transaction been a conditional sale, the condition, under the circumstances, was waived by a failure in time to elect whether he would confirm the sale and sue for the balance due, or rescind it, by tendering back the amount paid, and reclaim the goods, while the situation of the parties remained such as to permit this.</p> <p>(5) The sale being of the entire stock of merchandise owned by the defendant, who ceased thereafter to transact a mercantile business, no damages could be recovered on account of injury to his reputation as