Flanders & Huguenin vs. Maynard. nothing being said as to delivery,) the transaction, in its ultimate form, is, prima facie, either a loan of the value of the cotton, treating it as virtually paid for in cash, or a sale on the credit of the bankers, instead of a cash sale as originally contemplated. 4. Intention to dispense with actual delivery may be inferred from circumstances. When the parties consider the sale complete in respect to both price and delivery, the title passes. When, on the other hand, they intend that final payment and final delivery shall yet take place and be concurrent acts, the title does not pass. 5. Delivery, actual or constructive, under an express stipulation for retaining title till the price shall be paid, is but a conditional sale; and it preserves that character, in respect even to a subsequent bona fide purchaser, for value and without notice. 6. Where the delivery is of cotton etc., by a planter or commission merchant, "on cash sale," no express stipulation for the retention of title is necessary. By virtue of the statute, Code, section 1593, the title of the seller remains undivested until payment is received in full. The incidents follow, in respect to bona fide purchasers, which attend other conditional sales. 7. A conversation otherwise irrelevant to a given contract, may become relevant by having been recited between the parties while the negotiations were in progress. 8. Declarations by a person under whom the defendants claim, made whilst he was out of possession, and after the defendants parted with their money and acquired possession, are not admissible to impair their title. Practice in the Supreme Court. New trial. Sales. Delivery. Evidence. Before Judge HILL. Bibb Superior Court. April Adjourned Term, 1876. Maynard brought trover against Flanders & Huguenin for twenty-one bales of cotton. The general issue was pleaded. The evidence presented, in substance, the facts set forth in the third division of the opinion. The cotton was sold by plaintiff to H. G. Bean & Company, at Forsyth, on March 8, 1875, for $1,451.53. Whether it was understood between the parties that the title was not to pass until the money was actually paid, the testimoney was conflicting. Whilst the transaction was termed a cash sale, yet credit seems to have been extended. Bean & Company sold to A. H. Sneed, and he consigned to the defendants, factors in Macon. Whether the sale to Sneed was before or after shipment, the evidence Flanders & Huguenin vs. Maynard. was conflicting, but the consignment was in his name. Defendants advanced a considerable amount before they discovered that there was any controversy about it. Whilst the cotton was in their possession, after the advance, plaintiff demanded it and they refused to deliver. They subsequently sold it. The firm of W. L. Lampkin & Company, at Forsyth, was composed of the same members as the firm of H. G. Bean & Company. Lampkin & Company was engaged in the banking business; Bean & Company in buying and selling cotton. Plaintiff never has been paid for his cotton. Lampkin & Company and Bean & Company were insolvent at the time of the sale, though the fact was not generally known. The banking firm suspended payment on the 20th of March. To within a few days of this date, plaintiff could have drawn out the money deposited to his credit for the cotton, had he checked on it. In answer to the second direct interrogatory, plaintiff testified that about April 15th, 1875, B. Pye & Son, brokers, of Forsyth, proposed to purchase his cotton; that he priced it to them at about 14 cents per pound; that they sent to the warehouse and obtained samples; that they determined to purchase at the above price if plaintiff would let them ship it and get a return of sales before paying for it; that he declined to do this, telling them that he would not sell his cotton to any one on time; that if business had reached such a condition that cotton would not bring cash, he would quit business; that they insisted, and plaintiff still refused, but consented that they might ship the samples to Savannah to ascertain what they could do there. He further testified, that in the negotiations with Bean & Company, which led to the sale to them, he repeated this entire conversation had with the Pyes. This conversation was objected to by the defendants, but was admitted by the court. The plaintiff further testified, that on the evening of March 24th, 1875, after his return from Macon, where he had been to demand the cotton from the defendants, after Flanders & Huguenin vs. Maynard. the cotton had been advanced upon, he went with W. D. Stone, Esq., to see II. G. Bean, and found him sick in bed; that after the usual compliments, plaintiff remarked that he had been to Macon and found his cotton, and wished Bean to give him a written order to Huguenin & Flanders to turn it over to him; that Bean said, "Mr. Maynard, I would like very much to do so. I want you to get your cotton, and I hope you will get it, but as Sneed has drawn a draft on Huguenin & Flanders for $500.00, and given it to me, I do not see how I can give the order, but will see Mr. Lampkin in the morning and let you know whether I can give you the order or not." That he did not see Bean in several days, and then he said nothing in reference to the order. Mr. Stone testified, in reference to this conversation, that Bean said: "I am glad you have found it (the cotton), and hope you will get it, but I doubt your ability to do so, as Mr. Sneed has drawn $300.00 on it; but Mr. Lampkin is the money man, and I will see him in the morning and let you know about it." That he, Bean, said, in substance, when asked by plaintiff how his cotton came to be shipped in Mr. Sneed's name, "I will tell you the whole matter in a nut-shell; to save expense of drayage, etc., I thought I would let Sneed go down and sell it at the railroad. Sneed concluded to get the benefit of the rise, and I allowed him to store it." That witness made a note of this conversation, and has quoted Bean, in substance, correctly. To this testimony of plaintiff and of Stone, the defendants objected, but it was nevertheless admitted. The jury found for the plaintiff $1,451.93. The defendants moved for a new trial upon the following grounds, towit: 1st. Because the court erred in refusing to charge as follows: "If you believe, from the evidence, that Maynard accepted the entry in the book as payment, then it was a good payment." Flanders & Huguenin vs. Maynard. 2d. Because the court erred in refusing to charge as follows: "The question whether or not the sale of the cotton by Maynard to Bean & Company was for cash or credit, is a fact that it is the duty of the jury to determine, and if you believe, from the evidence, that credit was given by Maynard to Bean & Company, you should find for the defendants." 3d. Because the court erred in refusing to charge as follows: "If you believe, from the evidence, that Maynard left the proceeds of sale of cotton sued for with the banking house of W. L. Lampkin & Company, the question whether or not he left said sum, depositing it as a payment for said cotton, is for you to determine, and if you believe he so left it, you should find for the defendants." 4th. Because the court erred in charging as follows: "It takes a payment and delivery to pass title. It takes something to make a delivery; there may be an actual delivery; or a bill of sale, or a warehouse receipt is a good delivery. A written bill of sale, or a written warehouse receipt, is a good delivery. A written bill of sale, or written transfer of the warehouse receipt, will make a good delivery, or there may be a contract between the parties dispensing with delivery. Therefore, if you believe, from the evidence, there was no delivery or agreement to dispense therewith, you may stop right there, whether the entry was a payment or not." 5th. Because the court erred in charging as follows: "If a trade was agreed on by Maynard with Bean as to the price of said cotton, and a calculation made as to the amount said cotton came to, and said sum was entered in a pass-book, without more, by the said Bean for the said Maynard, said entry so made was in payment." 6th. Because the court erred in charging the jury as follows: "If Maynard sold the cotton for cash, saying afterwards he would wait a few days for the money, that would not be a payment, and it would not pass the title." 7th. Because the verdict of the jury was contrary to law and the evidence. Flanders & Huguenin vs. Maynard. 8th. Because the court erred in not ruling out the conversation between Maynard and B. Pye & Son. 9th. Because the court erred in allowing Maynard and Stone to testify to a conversation had with Bean on the 24th of March, and to give in evidence Bean's statement to them. The only verification of the grounds of the motion for a new trial, was as follows: "The above and foregoing objections to the charge of the court and statement of the evidence, are true, and contain a correct record of the same. This July 3d, 1876. (Signed) B. HILL, J. S. C. M. C. The motion was overruled, and the defendants excepted. When the case was called, counsel for defendant in error moved to exclude from the consideration of this court, all the grounds of new trial based on alleged errors in the charge, and on the admission of alleged illegal testimony. This motion was overruled, as will appear in the opinion. JOHN P. FORT; WOOTEN & SIMMONS, for plaintiffs in error. JOHN C. RUTHERFORD; W. D. STONE, for defendant. BLECKLEY, Judge. 1. Where some of the grounds of the motion for new trial are, that certain charges were given, that certain requests to charge were refused, and that certain evidence was admitted over the movant's objection, the truth of the matters alleged in these grounds is sufficiently verified by a direct statement in the record, signed by the judge, declaring that "the above and foregoing objections to the charge of the court, and statement of the evidence, are true, and contain a correct record of the same." Although the phraseology of this statement is peculiar and its construction difficult, yet, as there is every probability that it was intended to be a verification, and as this court cannot conjecture what else it was designed for, or discover in it any |