Pusey & Jones Co. v. Dodge

Citations

• 19 Del. 63
• 3 Penne. 63
• 49 A. 248
• 1900 Del. LEXIS 54

Syllabus

<p>Assumpsit—Book Accownt—Special Contract—Common Counts— Pleading—Executory Contract— Vesting of Property— Acceptance—Delivery.</p> <p>1. Where a special contract for the sale and delivery of goods has been fully performed on the part of the seller, and nothing remains to be done by him, and the contract price is due and unpaid, he may sue for the price of the goods, either upon the special contract, or upon the common count for goods sold and delivered. (See Hurlock vs. Murphy et. al., 2 Houst., j'yó).</p> <p>2. When the property in the goods has passed by sale to the buyer, but there has been no actual delivery to him, the plaintiff may recover the price under a count for goods bargained and sold.</p> <p>3. After a contract has been made for the sale of goods, in the absence of any agreement to the contrary, the vendor is entitled to retain possession of the goods until the price is paid. On the other hand the buyer is not bound to pay or tender the price until the goods are ready for delivery to him unless there is an agreement to the contrary.</p> <p>4. When a contract is entered into for an article not then in existence, but afterwards to be made, it does not become the property of the vendee until it is completed and delivered to him, or is ready to be delivered to him, unless it is otherwise agreed upon by the parties.</p> <p>5. Under such circumstances, in the absence ¡of a contrary agreement, the seller cannot maintain an action for the price until the article is completed, nor then until the purchaser has notice or knowledge¡that it is completed and ready for delivery; and without such notice to, or knowledge by, the vendee he is not bound to pay or tender the price.</p>