Smith v. Sparkman

Citations

• 55 Miss. 649

Syllabus

<p>1, Sales. What must he done by the seller. ,</p> <p>The rule in regard to sales, that everything which the seller has to do must he done before a sale becomes absolute, should be understood as meaning that everything must be performed which, by the contract, is required as a condition precedent to the sale. The seller may engage to do something in respect of the property, before it passes to the buyer, which the parties do not'mean to be essential, and which need not be done in order to render the sale absolute.</p> <p>H. Same. Compliance with statute of frauds not sufficient.</p> <p>A contract of sale may fulfill the requirements of the statute of frauds, and yet not be sufficiently perfect to transfer property in a thing from one person to another.</p> <p>3. Same. Executory contract. Case in judgment.</p> <p>On November 27, 1875, Sparkman “ bought of Lewis five bales of cotton, weighing 480 pounds each, at 11 cents per pound,” as evidenced by a memorandum in writing, signed by the latter. At that time L. had no cotton baled, or even ginned, but had enough to malee five bales picked out and in a house on his place. It was agreed that L. should haul the seed-cotton to M.’s gin, and, after it was ginned and packed, should haul the bales to Canton. After L. had hauled a portion of the cotton to the gin, and had three bales packed, Smith sued out an attachment against him, and caused it to be levied on the three bales at the gin, and the seed-cotton which had not been moved from L.’s house. Sparkman filed a claimant’s affidavit in the suit, and an issue was formed between him and Smith. The verdict was for the claimant. IS'eld, that the contract between Lewis and Sparkman was executory, and the property in the cotton had not passed to Sparkman when the attachment was levied.</p>