Fitch v. Asher

56 Miss. 571

• Court: Mississippi Supreme Court
• Decided: January 15, 1879
• Status: Published

Opinion

Campbell, J.,

delivered the opinion of the court.

The plaintiffs did not introduce any evidence tending to show a sale of goods to the defendant. The transaction shown was a consignment, and not a sale; and the case made by the pleadings was not sustained by the evidence. It is to be regretted that the declaration was not so drawn as to entitle plaintiffs to avail of the “actual cause of complaint” they had against defendant, or that an amendment of the declax-ation was not asked for, so as to avail of the state of case presented by the evidence; but it is clear that, upon the evidence, no recovery could be had by the plaintiffs under their declaration. The transaction between plaintiffs and defendant ivas not a “ sale or return,” as argued by counsel. In such case, title passes to the bargainee, and if he does not exercise his option to return, the sale stands; and, being a sale, it may be that assumpsit for goods sold and delivered is maintainable. But here there was no sale; no title passed to the defendant, who was the mere bailee of the goods; accountable to his bailor, it is true, but not liable for goods sold and delivered. Bulkley v. Andrews, 39 Conn. 70 ; Walker v. Buttericlc, 105 Mass. 237 ; Hunt v. Wyman, 100 Mass. 198.

• There is no force in the objection that the evidence offered by defendant was not admissible under the pleadings. This evidence was purely defensive, going to the negation of the averment of the declaration.

Judgment affirmed.