The controversy of fact between the plaintiff buyer and the defendant seller turned upon the point as to whether there had been a delivery of the automobile to the plaintiff, and whether the seller, after delivery, retained possession with the consent of the buyer for the purpose of securing himself for the payment of the same. Both of these issues of fact the jury must have found unestablished and hence in favor of the plaintiff. We have then upon the facts an executory sale of this automobile, neither title nor possession having passed to the buyer from the seller. Under these circumstances, the automobile remained at the risk of the defendant seller.
Had the sale been an absolute one, title to the automobile having passed to the buyer, whether the possession were in the buyer or not, the loss would have been on the buyer if it had been destroyed by fire subsequent to the sale. General Statutes, § 4688.
Had the sale been a conditional one with delivery to the buyer, but the title remaining in the seller until the performance of certain conditions, the seller would hold the title as security for the purchase price and in the event of the destruction by fire of the automobile, the loss would have been the buyer's since delivery gave him the use of and dominion over the automobile. General Statutes, § 4688, subdivision (a); 1 Williston on Sales (2d Ed.) p. 698.
But where there is no absolute sale and neither title in the automobile nor possession has passed, but there is merely an agreement to sell and to deliver at some future time, it is merely an executory agreement of sale, conditioned upon performance of named conditions. The destruction of the automobile rendered the performance of defendant's agreement to deliver in the *Page 578 future an impossibility and even though the loss was without its fault, it can neither compel performance by the buyer nor defend against reimbursement for payments made by the buyer on account of the purchase price, since the risk remained on the seller until delivery. General Statutes, § 4674 (§ 8, The Sales Act);Kein v. Tupper, 52 N.Y. 550, 555.
Williston on Sales (2d Ed.) § 164, in interpreting this section of the Sales Act and applying the principle of law to which we have referred, says: "Application of this principle to the law of sales, where goods are destroyed or injured by accident before the time when it was agreed that title or risk should pass, involves the conclusion that the buyer cannot be compelled to pay the price [Tillson v. United States, 129 U.S. 101,9 Sup.Ct. 255; Phillips v. Moor, 71 Me. 78, 80; Terry v.Wheeler, 25 N.Y. 520, 524; Kein v. Tupper, 52 N.Y. 550], and if he has paid the price in advance it may be recovered." Stone v. Waite, 88 Ala. 599, 7 So. 117;Joyce v. Adams, 8 N.Y. 291, 297; Kelly v. Bliss,54 Wis. 187, 11 N.W. 488. Whether this was an executory contract or not, is determinable by ascertaining at whose risk the subject-matter of the contract is prior to the time of delivery. Idaho Products Co. v. Bales,36 Idaho 800, 214 P. 206.
The cases cited by defendant are distinguishable from the instant case. O'Neill-Adams Co. v. Eklund,89 Conn. 232, 93 A. 524, was a case of a conditional sale of personal property delivered to the buyer and destroyed while in the possession of the buyer. "Eklund," our opinion states, "had obtained the possession of the property with the right to acquire a perfect title by payment of the price agreed upon." In the case before us, Baker, the buyer, never acquired possession. So Hollenberg Music Co. v. Barron, 100 Ark. 403,140 S.W. 582, concerns the sale of a piano which was *Page 579 delivered on a conditional bill of sale. Whitlock v.Auburn Lumber Co., 145 N.C. 120, 58 S.E. 909, concerned a sale of personal property and all of it was delivered except a dry kiln, which the seller offered to deliver with the other property, but the buyer requested the seller not to deliver until called for by him.
The fact that the defendant seller sold what remained of the automobile after the fire for junk, is strongly indicative of defendant's belief that the risk of the loss was on it. So likewise is the fact that defendant never demanded payment of the notes given for the purchase price and remaining unpaid, but on the contrary told plaintiff it would cancel them.
There is error, the judgment is set aside and the Court of Common Pleas is directed to render judgment upon the verdict.
In this opinion the other judges concurred.