Fiddyment v. Johnson

Bale op Baled Hay in Barns—Price per Ton—Part Payment—Title Passed—Loss by Flood—Bisk of Buyer.—A sale of all the baled hay in two barns of the plaintiff to the defendants at a fixed price per ton, which were separated from all other hay in the barns, and which were exhibited and fully identified, and upon which defendants paid $400, and was to pay the residue of the price per ton in installments upon delivery from time to time, passed a present title' to the defendants to all of the baled hay; and where, without the fault of the seller, after delivery and payment for a number of installments, the undelivered bales were damaged as the result of a flood, such bales were at the risk of the buyer, and the loss must fall upon him.

Id.—Code Provision as to Passage op Title to Buyer.—Under section 1140 of the Civil Code “The title to personal property sold or exchanged passes to the buyer whenever the parties agree upon a present transfer, and the thing itself is identified, whether it is separated from other things or not.”

Id.—Agreement upon Present Transfer—Question op Fact.—From the evidence presented to the court, it was a question of fact for the court to determine as to whether or not the parties had agreed upon a present transfer. Where the intention of the parties is not clear, but must be determined from the facts and circumstances of the case, it is a question of fact for the jury or the trial judge.

Id.—Weighing and Measuring to Ascertain Final Price—Delivery at Point op Shipment.—If the goods sold are identified, and the parties agree upon a present transfer, it does not matter that weighing or measuring is necessary to ascertain the price to be finally paid; neither is the fact that the seller has agreed to haul and deliver the goods at some point of shipment necessarily controlling.