Kraemer v. Sieburg

{after stating the facts.) The only question herein is as to whether the fixtures in question were actually sold by defendant to plaintiff by an absolute sale, or whether there was a conditional sale only; the title thereto to remain in defendant until full payment of the whole contract price. There appears to have been some misunderstanding between the parties on this point. The plaintiff refused to make the cash payment of $200, and to deliver the notes for the balance, until he had received from defendant the full bill of sale therefor, which he claimed he was entitled to, and demanded such bill of sale, claiming that he had made an absolute purchase. The defendant thereupon conceded to plaintiff’s demand; and on Ho vember 5,1883, upon receiving from the plaintiff $200 in cash, and $450 in notes, delivered to him a full bill of sale thereof. It would seem, therefore, that the agreement signed by plaintiff and defendant on October 29, 1883, was by mutual consent waived, abandoned, and canceled, and that all misunderstandings between the parties as to said agreement were arranged; that tlie agreement had been ignored and repudiated by plaintiff; and that defendant recognized the plaintiff’s right to an absolute bill of sale, by delivering the same to him, particularly as no explanation was given by defendant in his testimony, and no contradiction on the part of the defendant of the plaintiff’s testimony on that point, nor was any testimony offered on the part of the defendant to show any want of au*395thority on the part of his clerk to deliver the hill of sale to plaintiff, or to receive from him the $650 in cash and notes. It was simply a question of fact for the jury to pass upon whether there was an absolute or conditional sale; in doing which they had also to consider the credibility of the plaintiff and of the defendant. The whole issue was fairly and fully presented by the trial justice to the jury, who found in favor of the plaintiff. I do not find that any errors were committed by the trial justice in his rulings, or in his charge to the jury. The judgment and the order denying defendant’s motion fora new trial must therefore be affirmed, with costs.

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Hehrbas and Pitsiike, JJ., concurring.