Reherd's Adm'r v. Clem & Wenger

Citations

• 86 Va. 374
• 10 S.E. 504
• 1889 Va. LEXIS 52

Syllabus

<p>1. Bailment—Sale—Title loproperty.—Where the article delivered is to be returned, though in an altered form, the transaction is a bailment and the title to the property is unchanged. Where another thing of equal value may be returned, the receiver becomes debtor to make the return, the transaction is a sale and the title is changed.</p> <p>2. Witnesses—Competency—Parties—Agents.—Where party is allowed to testify on the ground that transaction was with decedent’s agent, a living and competent witness, his examination must be confined to so much of the transaction as was personally with the agent.</p> <p>3. Parol evidence—Ambiguity—Instructions—Case at bar.—Where receipt for wheat delivered in mill was ambiguous as to whether sale or bailment was intended, and there was evidence to support the theory that a sale had been made at a price to be fixed at any time by the seller: held, error to restrict the jury to the terms of the receipt for its interpretation.</p> <p>4. Contract op Sale—New trial—Case at bar.—Where a motion for new trial is overruled and the decision excepted to, and it appears from the exceptee’s evidence that they received exceptor’s wheat, mixed it with and ground it as their own, sold the flour, and never during the eighteen months between receiving it and the -destruction by fire of their mill, tendered the wheat itself, or other wheat, or flour to 'exceptor, nor after the fire, tendered him any of the wheat saved from the fire, and sold by exceptees as their own, and the receipt itself shows that the wheat' was delivered on a contract for a sale, leaving only the price to be paid at the market rates on the day fixed by the exceptor: luid, the denial of the motion was error.</p>