Herman

Action to recover $854 for two thousand and twenty sacks of potatoes alleged to have been sold by plaintiff to defendants at the following prices: Twenty sacks at forty-five cents per sack, and two thousand sacks at forty-two and a half cents per sack. The court found for plaintiff, and judgment was accordingly entered. This appeal is from the judgment on the judgment-roll and a bill of exceptions.

The appellants contend that the evidence is insufficient to* support the findings, and show that the potatoes were not up to the quality specified in the contract. The main discussion is as to whether or not the contract was a present sale by which the title passed, or an agreement to sell in future. The contract is as follows:

The court found: “That it was intended, and so understood by and between plaintiff and defendants, that the said transaction was a sale and not a contract.” We are of opinion that the agreement was a sale, by which the title passed from the plaintiff to the defendants when the potatoes were sacked and delivered to defendants on the “Bank” as specified in the agreement. The agreement acknowledges the receipt of $5 as part payment for “2,000 sacks B Bank at 42%…