Schott v. Glauser
Schott v. Glauser
Opinion of the Court
after stating the foregoing facts, delivered the opinion of the Court:
It is unnecessary to pass upon the effect of the memorandum agreement of November 2nd. The case turns on whether the memorandum agreement of October 28th constitutes an executed sale of the cheese, whereby the title passed from Schujahn to the appellees.
We are of the opinion that the sale was executory merely, to be completed in the future by the delivery to, and acceptance by the appellees. The contract provides for final acceptance in futuro, and it seems plain that if any of the cheese had not been of the quality named, rejection would have been within the power of the appellees. The transaction was thus incomplete, remaining open to some further act upon the part of the appellees. A transaction thus situated is not such sale as passes in prsesenti the title to the property.
The order appealed from will be reversed, with instructions to the District Court to enter an order dismissing the petition of the appellees.
Reference
- Full Case Name
- In re SCHUJAHN. SCHOTT v. GLAUSER
- Cited By
- 1 case
- Status
- Published
- Syllabus
- 1. Executory Sale. A contract reciting: “Sold to-day to G. & E. two hundred and twenty-five (225) cases of fall made Brick Cheese as follows: One hundred (100) cases to be shipped at once. These hundred cases I sell to G. & E. at 10%c per pound, if the cheese is accounted for between now and December first. If G. & E. do not account for this lot before the first of December at 1014c per pound they may do so at any time between December first and January first at the then ruling market price. I agree to pay the storage on this lot up to the time of the final acceptance by G. & E. One hundred and twenty-five (125) eases are to •be kept by me in factory subject to G. & E.’s order and may be accounted for by them under the same conditions as the above hundred (100) eases, the price between now and the first of December to be 1014c for the hundred and twenty-five cases, and after the first of December the market price,” etc.— shows a mere executory sale, and does not pass the title in praasenti.