Opinion
No. 2157.
June 6, 1923. Rehearing Denied June 20, 1923.
Appeal from Wichita County Court; Orus O. Ross, Special Judge.
Action between B. H. Christian and others and B. A. Moore. From a judgment for the latter, the former appeal. Modified and affirmed.
Arch Dawson, of Wichita Falls, for appellants.
Cox, Fulton Myers, of Wichita Falls, for appellee.
The supply pipes were a necessary part of the toilets, the subject of the contract between the parties, and were included in the general description of the contract. The contract was not fulfilled without the delivery of such pipes. 35 Cyc. p. 100; note, 8 L.R.A. (N.S.) 793.
We think the evidence shows that the title to the property passed to the purchaser on delivery thereof to the warehouseman. Irvin v. Edwards, 92 Tex. 258, 47 S.W. 719; Mechem on Sales, § 1185 et seq.; R.C.L. vol. 24, p. 14, § 274; also sections 276, 303; notes, 26 L.R.A. (N.S.) 47. The fact that the purchase was to pay for the storage, that he executed his note for the purchase price, and gave a mortgage back on the property, that he obligated himself to pay the storage charges and the property was insured by the purchaser, is conclusive evidence of the intention of the parties to pass the title to the purchaser.
The risk goes with the title in the absence of contract to the contrary. Alsworth v. Reppert (Tex.Civ.App.) 167 S.W. 1098 (5). We do not think the agreement for storage cast this risk upon the vendor. The warehouseman was a bailee holding possession of the property for the benefit of both parties to the contract, and would, of course, be responsible for negligence in keeping and caring for it. But the bailee is not, properly speaking, a servant or agent of the bailor. 6 C.J. 1099; Mechem on Agency, § 5. However that may be, in this case the warehouseman was holding possession according to the letter of the contract as "joint agent" for both parties. Neither could be responsible to the other for the independent wrong of the bailee with reference to such possession. We hold, therefore, that the court was in error in rendering judgment for the value of the six bowls lost by the warehouseman. The facts show a reasonable excuse for the plaintiff's failure to inspect the property purchased and to discover the absence of the supply pipes at the time of delivery. See Ferguson v. Johnson (Tex.Civ.App.) 205 S.W. 512.
The judgment for appellee will be reduced in the sum of $48, and affirmed.