Seckel v. Scott

Citations

• 66 Ill. 106

Syllabus

<p>1. Sale—when complete so as to pass the title. As between vendor and vendee, the title to personal property passes without any delivery whenever the sale is completed; and an agreement to sell an article by weight, when the article is identified or separated from other like articles, and the price is agreed upon between the parties, will be a complete sale, if the parties intended it as such, although the article has not been weighed. Whether a sale is complete so as to pass the title, is a question of fact for the jury.</p> <p>2. Pleamku—when necessa/ry to declare specially. In a suit to recover damages for the non-delivery of goods under an executory contract to sell, or for the non-delivery of goods bargained and sold, no recovery can be had upon the common counts.</p> <p>3. Pleading and evidence—count for goods sold. Special counts alleging that goods were bargained and sold can not be supported, unless there has been an actual sale of the goods, and unless the property in them has become vested in the purchaser.</p> <p>4. Instructions—must not submit a different state of fact from that stated in pleading. Where the plaintiff declares upon a completed sale, it is erroneous for the court, in instructing for him, to submit to the jury the question of an executory contract of sale, especially where there is no evidence tending to prove the latter.</p> <p>5. Sale—accidental destruction before delivery—when an excuse for nondelivery. Where the defendants sold the plaintiffs their entire lot of butter at fourteen cents per pound, the terms of the sale being that, immediately upon the closing of the bargain, the buy'ers were to take at the store of the sellers and pay for 100 firkins, and pay as earnest money §2 for each of the remaining firkins, which they were to take at the sellers’ store and pay the balance of the price within thirty days; and where they took and paid for at the time 125, and soon after 16, making in all 141 firkins, and paid the earnest money o