81 512 126 44 81 512 163 647 Bertelson v. Bower. No. 9011. BERTELSON v. BOWER. CONTRACT.-Pleading.-Condition Precedent.-Performance.—In pleading the SPECIAL FINDING.- Practice.--When the court finds the facts specially, J. E. Williamson, for appellant. C. Staser, C. Buchanan, H. C. Gooding and J. S. Buchanan, for appellee. ELLIOTT, C. J.-Appellant argues at much length that the complaint is insufficient, because it does not show performance by appellee of his part of the contract upon which the action is founded. The complaint substantially adopts the language of the statute and alleges that the plaintiff performed all the conditions of the contract on his part. R. S. 1881, section 370. The code expressly declares that such an allegation shall be sufficient. Lowry v. Megee, 52 Ind. 107. The court made a special finding at the request of the appellant. The material facts stated in the finding are these: In March, 1879, a verbal contract was entered into between the parties, wherein the appellant agreed to buy of appellee his spring lambs, one hundred and twenty in number, the price of the first fifty delivered to be $2.25 each, the price of the second fifty to be $2 each, and that of the remainder to be $1.50 each; the contract further provided that the appellee should keep the lambs on good pasture until called for by appellant; that the latter should take each week such a num Bertelson v. Bower. ber as he needed, but all to be taken by him before the 1st day of September, 1879. It was also provided that the appellee was not absolutely bound to deliver the last lot of twenty, but if he so elected the appellant was bound to take them. The lambs bought by appellant were not specifically set apart or designated, but it was the agreement that they should all remain with the appellee's flock of sheep until called for from time to time by appellant. Appellant inspected the places where the lambs were to be kept, and also examined the lambs purchased. Pursuant to the contract the appellant during the months of May and June went to appellee's farm, received and took away twenty-three of the lambs, and paid to appellee fifty dollars. Appellant refused to accept any other lambs. Appellee fully performed his part of the contract, but the lambs, from some unknown cause not attributable to any fault or wrong of the appellee, became unfit for the market, and for the purpose for which they were purchased. Appellant's counsel says that the case presents this question: "If personal property the subject of an executory contract of sale, in the absence of warranty, sustains damage without the fault of either party to the contract, before the title passes, by whom shall the loss be borne, bargainor or bargainee?" This question is, as counsel affirms, easily answered. Nobody doubts that where no title has passed the seller, and not the buyer, must bear the loss. The rule expressed in the answer to the question is, however, far from disposing of the case. The material question is, did the title pass? Where any act remains to be done before the sale is complete the title remains in the seller and he must sustain the loss caused by injury to the property. In the present case no act remained to be done. All that was necessary to complete the sale was done. The case is entirely unlike the sale of certain articles out of a large number. Here the sale was of all the spring lambs owned by the appellee. There was no setting apart to VOL. 81.-33 Bertelson v. Bower. be done. There was no act of separation to be performed. There was no necessity for any counting or weighing, or for any similar acts. The fact that the appellee was to retain possession of and pasture the lambs, did not change the character of the transaction. It was none the less a sale because the seller agreed to care for the property. It was just as competent for the parties to agree that the seller should hold possession as bailee, as for them to agree that anybody else might do so. This rule is well supported. Henline v. Hall, 4 Ind. 189; Cloud v. Moorman, 18 Ind. 40; Scott v. King, 12 Ind. 203; Marble v. Moore, 102 Mass. 443; Benj. Sales (3 Am. ed.), sections 315, 316, 317, authorities n. In Lester v. East, 49 Ind. 388, it was said: "There is no doubt that a sale of personal property may be complete, so as to pass the title without a delivery." Ramsey v. Kochenour, 8 Blackf. 325; Bradley v. Michael, 1 Ind. 551; Wright v. Maxwell, 9 Ind. 192; Sherry v. Picken, 10 Ind. 375; Davis v. Murphy, 14 Ind. 158. Appellant's counsel asks us to examine the evidence. The appellee controverts our right to do this, and insists that the appellant is precluded by his exceptions to the conclusions of law. We are referred by appellee to the cases of Dehority V. Nelson, 56 Ind. 414; Hartman v. Aveline, 63 Ind. 344; Wharton v. Wilson, 60 Ind. 591. From the case first cited this quotation is made: "By excepting to the conclusions of law of the court, drawn from its findings of the facts, the party excepting admits such facts to have been fully and correctly found." Counsel have given these cases an erroneous construction. They do not decide that a party who excepts to conclusions of law precludes himself from moving for a new trial. They simply decide that the exception admits, for the purposes of the exception, the truth of the propositions of fact stated by the court. An exception to the conclusions of law does not cut off a motion for a new trial. If a party desires to bring in review the finding of the court upon questions of fact, a Johnson School Township v. Citizens Bank of Greenfield. motion for a new trial, upon the ground that it is not supported by or is contrary to the evidence, is the appropriate proceeding. Robinson v. Snyder, 74 Ind. 110. We have examined the evidence, and we think it fairly sustains the finding. Judgment affirmed. Opinion filed at November term, 1881. Petition for a rehearing overruled at May term, 1882. 81 515 124 No. 8864. JOHNSON SCHOOL TOWNSHIP v. CITIZENS BANK OF GREEN FIELD. PROMISSORY NOTE.-- What is.-Form. --School Township.-Township Trustee.— SAME.-Pleading.-Copies.-A complaint of two paragraphs, upon two prom- PRACTICE.—Pleading.--Partial Defence.-A partial defence pleaded as an SAME.-Demurrer.-Defect of Parties.-A demurrer for want of facts, and for want of the plaintiff's capacity to sue, presents no question as to a defect of parties. From the Clinton Circuit Court. 79 Johnson School Township v. Citizens Bank of Greenfield. J. N. Sims, for appellant. S. H. Doyal and P. M. Gard, for appellee. WOODS, J.-Complaint in three paragraphs by the appellee against the appellant, each paragraph purporting to be founded on a writing executed by the appellant to the assignors of the appellee, described respectively as exhibits A, B and C. Exhibit A, referred to in the first paragraph, is of the tenor following, to wit: "$514.50. "A" "State of Indiana, County of Clinton, "Treasurer's Office, Johnson Township, August 14th, 1876. "This is to certify, that there is due from this township to Teal & Puterbaugh, or order, five hundred and fourteen dollars and fifty cents, for school furniture, and payable on or before the 1st day of January, 1878, with interest at the rate of ten per cent. per annum from Sept. 20th, 1876, and if not paid at maturity, both principal and interest shall bear ten per cent. until paid. For value received, waiving valuation and appraisement laws. Payable at the First National Bank of Frankfort, Ind. (Signed) W. H. FRIER, "Trustee Johnson Township." Instead of giving a copy of the instrument referred to in the second paragraph, the pleader inserted after exhibit “A” the following statement, to wit: "B" "This second note is an exact copy of exhibit 'A,' as set out above, except the endorsements, which are as follows: 'Teal & Puterbaugh; Boyd & Hinchman.'” Exhibit "C," referred to in the third paragraph, is given in full, and does not differ essentially from exhibit "A." The appellant demurred to each paragraph, for want of capacity in the plaintiff to sue, and for want of facts sufficient to constitute a cause of action, and has assigned error upon the overruling of the demurrer. Counsel for the appellant insists that the writings sued on |