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Les diagrammes suivants illustrent la m^thode. errata to i pelure. on d n 1 2 3 32X 1 2 3 4 5 6 J -■f 't SELECT CASES IN THE LAW @t PERSONAL PROPERTY. WITH ANALYSIS^AND REFERENCES TO OTHER CASES .dirflSfl5(M^ BV C PROFESSOU OF MIS AM JOHN D; LAWSON, LL D. COMMON LAW IN THE INIVEKSITY OF THE STATE OF 5SOUKI, AND AUTHOR OF "THE PKlNCirLES OF THE MERICAN LAW OF CONTRACTS" AND "BAILMENTS," ETC. ns-i^ COLUMBIA, MO. : E. W. STEPHENS, PUBLISHER. 1896. ' ,S!$ti!K'?mmiiiM^iMi^'kt ^ I 1 cA u-'^ COPYRIGHT, 1896, By JOHN D. LAWSON. ^ -: 4' V 't. PREFACE. This collection of cases on the Law of Personal Property is prepared for the use of students in Law Schools. In the course of my lectures on this subject, during the past year or two, I have become convinced that such a book would be of great use, not only in my own, but in other class-rooms. It w'll be observed that the subject of Sales is included in my analysis and in the cases here presented. I am of opinion that it belongs here, — as one of the modes in which title to PevKonal Property is or is attempted to be obtained— rather than (although it is usually so treated in the text-books) as a branch of the Law of Contracts. J. D. L. mmM TABLE OF CASES. PAGE. Allan! v. CJreasert, 61 N. V. i ■\"<) American Print Works v. Lawrence, 2? N. J. (L.) 590 ?<> Andrews v. D'.irant, 1 1 N. Y. 35 343 Arnold V. Delano, 4 Cnsli. 33 '^96 iliilK-ock V. Honnell, So N. V. 244 703 liailev V. Hudson River R. Co., 49 N. V. 70 49<' Haldey v. I'arker, 2 15 . & C. 37 39^ r.arker v. ]:>insmore, 72 Pa. St. 427 5.S7 Barnard v. Campbell, 55 X. V. 456. 5S Id. 73 562 Harnard v. Kellogg, 10 Wall. 383 •• f'i3 Hartlette V. Crittenden, 4 McLean, 300 267 Basket V. Hassell, 107 U. S. 602 3^4 Benedict v. .Schaettle, 12 Ohio St. 515 "08 Bird V. Munroe, 66 Maine, 337 4^6 Bradford v. Manly, 13 Mass. 139 ^.S" Bretz V. Diehl, 117 Pa. St. 589.. 334 Brewster V. Hill, I N. IL 350 -9 Brown V. United States, 8 iTranch, no 169 Bryant V. Letever, 4 C. P. D. 172 10 LMtler V. Thomson, 92 U. S. 412 4i7 Bvrne V. Jansan, 50 Cal. 624 607 California Fig Syrup Co. v. Putnam, 66 Fed. Rep. 750. 69 Id. 740.. 307 Caulkins v. llellman, 47 N. Y. 449 4oi Cciluloid Mfg. Co. V. Cellonite Mfg. Co., 32 Fed. Rep. 94 296 Chapman v. Shepard, 39 Conn. 413 455 Chaney v. Hoxie, 143 Mass. 592 313 Coggill V. Hartford, etc., R. Co., 3 Gray, 545 553 Cole V. Berry, 42 N. J. (L.) 308 , .S47 Commonwealth v. Fleming, 130 Pa. St. 13S 494 Cooke V. Millard, 65 N. Y. 352 378 Cross V. O'Donnell, 44 >«• Y. 66i. 4o6 Cnshing V. Breed, 14 Allen, 376 483 Daniels V. Pond, 21 Pick. 367 9° Dearborn v. Turner, 16 Maine, 17 5o6 Drury v. Young, 58 Md. 546 434 D'.niiont V. Kellogg, 29 Mich. 420 '8 Durfee V. Jones, 11 R. I. 588 182 Diistan V. McAndrew, 44 N. Y. 72 636 llarl V. Van Alstine, 8 Barb. 630 39 V J VI TAIILE or CASES. PAGE. .. 559 .. 412 ... 577 119 Easter V. Allen, S Allen, 7 Kdf^erton v. Hoilge, 41 Vt. C)?^ Kichliolz V. Haniiister, 17 C. H. (N. i^O 7°^ Farrar v. Stackpole, 6 Maine, 154 "^^ Filley v. Fussett, 44 Mo. 16S Fleet V. Hegeman, 14 Wend. 43 Folsotn V. Marsti, 2 Story, 100 GatViulcl V. Ilupgood, 17 Pick. 192.... Gerst V. Jones, 3.! Gratt. 518 Giroux V. Stedman, 145 Mass. 439 Goddard v. Hinney, 115 Mass. 450 Goddard V. Wine lell, 86 Iowa, 71 Gould V. Rourgeois, 51 N. J. (L.) 361 Gregory V. Stryker, 2 Denio, 62S Griffith V. Fowler, 18 Vt. 390 Gross V. Kierski, 41 Cal. in Hamaker V. Blunchard, yo Pa. St. 377 Haslem v. Lockwood, 37 Conn. 500 Hatch V. Oil Co., 100 U. S. 124 Hawkins v. Pemberton, 51 N. Y. 19S Heddericli v. Smith, 103 Ind. 203 Hendersbn v. Cardwell, 9 Baxt. 389 Hesseltine v. Stockwell, 30 Maine, 237 Hickey v. Hazard, 3 Mo. App. 480 Higgins V. Kusterer, 41 Mich. 318 Hoffman v. Carow, 22 Wend. 285 Hosmer v. Wilson, 7 Mich. 294 Hoxie V. Chaney, 143 Mass. 592 Hubbard v. Town, 33 Vt. 295 Hull V. Hull, 48 Conn. 250 Hunt V. Wyman, 100 Mass. 19S Huthmacher v. Harris, 38 Pa. St. 491 Isle Royale Mining Co. v. Hertin, 37 Mich. 332 Janney v. Sleeper, 30 Minn. 100 Jewett V. Dringer, 30 N. J. (Eq.) 291 Jones V. Earl, 37 C.il. 630 Kellogg V. Lovely, 46 Mii^h, 131 Kinsell V. Billings, 3.S Iowa, 154 Kountzv. Kirkpatrick, 72Pa. St. 376 Lawton v. Steele, 152 U. S. 134 Lee V. Griffin, I B. & S. 272 Livermore V. White, 74 Maine, 45:: Loomis V. Bragg, 50 Conn. 2 j8 Low V. Pew, 108 Mass. 374 Lyon V. Bertram, 20 How. 149 Mugruder V. Gage, 33 Md. 344 ^^" Manning v. Mitcherson, 69 Ga. 447 McConnell v. Hughes, 29 Wis. 537 lOl 271 153 643 655 375 23 58^ 207 510 573 189 174 44.S 626 15.=; 88 236 I.S9 , 92 . 514 , O91 • 313 . S • 349 . 507 • 177 . 210 . 659 . 232 ,. 716 . . 204 .. 134 • • 358 ■ • 49 •• 371 .. 185 •• 339 .• 353 •■ 734 66 1 356 TAllI.K OK CASES. vH PACK. . . 559 .. 4'^ .. 577 .. lU) .. 2S4 . . lOI ..271 .. 153 .. 643 . (>5S ... 375 • ■ 23 ... 5«^ . . 207 .. 510 . .. 573 ... 1B9 ... 174 ... 445 ... 626 ... 155 ... 8S ... 236 .... I.S9 . . . . 9- .... 514 . .. 691 ...• 313 .... S .... 349 .... 507 .... 177 .... 210 .... 659 232 .... 716 204 134 35^-^ 49 371 1S5 339 353 734 66i 167 356 PACE. McCormick v. KcUv, 2S Minn. 13.:; ^'J Meneely v. Meneely, 6j N. Y. 4:7 290 Miller v. riiinib, 6 Cow. 665 "43 Morgan v. Cox, 22 Mo. 273 35 Morrison v. Semple, 6 Hinney, 94 ' Xewhall v. Central i'ac. R. Co., 51 Cal. 345 7-o Norrington V. Wright, IIJ U. S. 188 666 Oliver V. Hunting, 44 Cii. Div. 205 44» Osgood V. Lewis, 2 II. & S. 495 S89 Ottiiinwa Woolen Mills Co. v. Iluwley, 44 Iowa, 57 127 Parker v. Mise, 27 Ala. 4S0 95 Pai.lv. Reed, 52 N. H. 13''^ ■♦^^' Pierce v. Proprietors, 10 R. I. 227 ^°5 Pierson v. Post, 3 Caines, 175 ^^4 Pratt V. Bryant, 20 Vt. 333 ^33 Prescott V. Locke, .i;i ^'. '1-94 '*^^ Providence Bank V. Billings. 4 Pet. 560 59 Randall v. Newson, 2 Q. B. O. 102 ^34 Rogers V. Woodruff, 23 Ohio St. 632 508 Sanborn V. Flagler, 9 Allen, 47.; 4" Scott V. Wells, 6 W. & S. 357 W Scudder v. Worster, II Cush. 573 7^^ Seitz v. Brewers' Ref. Mach. Co., 141 U. S. 510 599 Shaw V. Cooper, 7 Pet. 292 • ^39 Shawhan v. Van N'est, 25 Ohio St. 490 079 Silsbury V. McCoon, 3 N. Y. 379 ^^'^ SUu-r V. Sample, 71 111. 430 ^i Smith V. Smith, 51 N. H. 571 319 Snedeker V. Warring, 12 N. Y. 170 "- State V. O'Neil, 48 Vt. 140 S^^ State Savings Bank V. Kircheval, 65 Mo. 6S2 123 Tisdale V. Harris, 20 Pick. 9 368 Tufts v. Sylvester, 79 Maine, 213 7l8 Van Leuven V. Lyke, I N. Y. 513 46 Van Ness v. Pacard, 2 Pet. 137 ^45 Waddingham v. Loker. 44 Mo. 132.... ^ 5 Watts V. Ward, I Ore. 86 ^9^ Wentworth v. D.iy, 3 Mete. 352 201 West River Bridge Co. v. Dix, 6 How. 509 65 Wetherbeev. Green, 22 Mich. 311 ^'^ Wheaton v. Peters, 8 Pet. 591 ^52 Whitcomb v. Whitney, 24 Mich. 486 465 Whitmarsh v. Walker, 1 Met. 313 7^4 Wbittingham v. Ideson,8 U. C. L. 14 9 Wing v. Merchant, 57 Maine, 383 321 Winslow v. Merchants' Ins. Co., 4 Mete. 310 136 Wolcottv. Mount, 38 N.J. (L.) 496 621 Wood V. Pierson, 45 Mich. 313 • • '94 T5?iWf^ Ju ANALYSIS OF TIIF. SUBJFXT AND TABLE OF CONTENTS. .■)• CHAPTER I. The Characteristics ok Pf.usonal Propkiitv. '""i^'^The mennins of "propevty"-Absol«te property. ]\ron-ison v. Scinplc, 6 IJiiincy, 94 3. Quiilified property— in the lislH- Hnbhard v. ro'vn, 33 Vt. 295 Qualifi'^d property— In the air. Bryant v. Lefcvu; 4 C. P. D. 172 Qunlitied propcrt) — In the water. Duimnt V. Kcllo^^g, 29 Mich. 420 Qualified property— In wild animals. Picrson V. Post, post, S 35. Afaiinim; V. Mitchcrson, post. § 36. Test of real as distinguished from personal prop- erty, (i) Immovability. Goddardv. \VinchcH,'i(>lo\s;\,^\ Test of real as distinguished from personal prop- erty. (2) Duration of time of enjoyment. Brc-xstcr v. Hill, 1 N. H. 350 Property changing character. Slater V. Sample, 71 i^^- ^r:) 8. 10 18 23 39 31 CHAPTER II. The Limitations to the Ownership of Personal Property. ,. Limitations to absolute ownership— Must not be used so as to injure others. Morgan v. Cox, 22 Mo. 273. ...-•>•• viii 35 1 ANALYSIS OK THIi SUHJICCT ix BjnCT 'ropkrtv. property. • • • lO i8 rsonal prop- 23 n-sonal prop- Mlt. 29 31 OF Personal •Must not be 35 "io. Siimu— Injuries by wild aninuilb and liability of owner. Earl V. Van Ahtinc, S Rarb. 630 39 II. vSame Injuries by domestic animals and liability of owner. Van Lcuvcnv. Lykc, i^.\. $\T, 4^ 13. Same— The police power of the state. La-x'ton v. Strr/c, 152 U. S. 134. . . ... 49 13. Same— The taxing power of the state. Providence Bank v. Billiui^s, 4 Pet. 560. . . 59 14. Same — The power of eminent domain. West River Briifi^e Co. v. Dix, 6 How. 509 . . 65 15. Same— The case of public necessity. American Print Works v. Laivrence, 23 N. J. (L.)S90 76 16. Same — The claims of creditors. Waddinghani v. Ln^er, 44 Mo. 132. . ... 83 CHAPTER III. Some Peculiar Classes of Personal Property. 17. Emblements. Henderson v. Cardivell, 9 Bayt. 3S9. . . iS. Manure. Daniels V. Pond. 31 Pick. 367 19. Ice. Higgins V. Kustcrcr, 41 Mich. 31S. . . 20. Tame animals — The dog. Parker v. Mise, 27 Ala. 480 21. Tame animals— The cat. Whittingham v. Ideson, S U. C. L. J. 14 • 23. Tame animals — The oyster. Fleet V. liegeman, 14 Wend. 43 loi 23. Mortuary property. Pierce v. Proprietors of Szvan Point Cemetery, 10 R. I. 227 105 24. Fixtures — Acutual annexation. • ^ Snedekerv. Warring, \z^.^ . ^^o . . . .112 88 90 92 95 96 J J ANALYSIS OF THE SUBJECT. SECTIOV. 25. Same — Constructive annexation. Farrar V. Stctckpoie, o'i^Uxmc, .54 26. Same — Purpose and use as test. State Savi?tgs Bank v. Kirchevel, 65 Mo. 6S2. . 27. Fixtures — Intention of parties as the test. Ottuiniva Woolen Mills Co. v. Hawlcy, 44 Iowa, 57 • 2S. Same — Between heir and executor or admnustrator. Kinsellv. Billings, y^\.o^i\, \^\ Same — Between i-nr>rtgapfor and mortgafjee. Winslow V. Merchants' Ins. Co., 4 Mete. 310. Same — Between vendor and vendee. Miller v. Pinmh, 6 Cow. 665 Same — Landlord and tenant — Trade fixtures. Van Ness V. Pacard, ^Vct. xi'J Same — Domestic fixtures. Gaffield V. Hapgood, i>] V\d^. 192 Same — How right to removal lost. Hedderich v. S?nit/i, 103 Ind. 203 29. 30- 32 33 119 127 134 136 143 i4r 153 155 CHAPTER IV. The Modes of Obtaining Title to Personal Property. I. By Original Acquisition. (a) occupancy. 34. Original occupancy in gcofral. Hickeyv. Hazard, 3 Mo. (App.) 4S0. . . .159 35. Same — Capturing wild animals. Piersottv. Post, iC-MW&'i,, 175. . . • . • • 164 36. Same — Wild animals regaining liberty. Manning v. Mitchcrson, 69 Ga. 447 167 37. Goods captured in war. Broxvnv. United States, S Cranch. no. . . . 169 38. Goods abandoned by owner. Haslem v. Lockivood, 37 Conn. 500 174 Huthmaclurv. Harris, i%V?,.'S>t. \c)\. . . .177 • • • 119 55 Mo. 6S2. . 1^3 est. ■wlcy, 44 Iowa, . 127 administrator. 134 japjee. . Mete. 310. . .36 143 fixtures. h: 153 155 RSONAi. Property. tion. 4S0. 147' h. 1 10. JO. t. 491. •159 . 164 . 167 . 169 ■ '74 • 177 ANALYSIS OF THE SUBJECT. xl SECTION. 39. Lost property — What is and what is not. Durfecz'.Joncs. . i R. I. 5S8 1S3 Livermorc v. White, 74 Maine, 452 1S5 40. Ri-inger, 30 N. J. (Eq.) 291. . . . 232 50. Confusion of gocd« through accident, mistake, or by consent. Pratt V. Bryant, 20 Vt. 333 233 51. Same — Rule where goods are of equal value. Hesscltine v. Stockzvell, 30 Maine, 237. . . . 236 (C) INTEI.T.ECTUAL LABOR. 52. Patents. Sliaxv V. Cooper, 7 Pet. 292 239 53. Copyrights — The right a statutory one. Wheaton v. Peters, 8 Pot. 591 252 H X|i ANAI-VSIS OK THE SUBJECT. SECTION. . 1 .. • CA. Same— Publication, what is a. narthtte v. CrittciJcn. 4 McLean, 300. . . _• 2(37 55. Same-What is an infringement-Property m pn- vate letters. Fo/soin V. Marsh 56. Trade-marks— Consist of what. Filhy V. Fassctt, 44 Mo. 189 + .-« Same- Names of individuals. Mcncclyv. Mc>icc/y,62^.\. \^-l -> = S. Same— Descriptive words. ' a.//../././ ^ffg. Co. V. CcUomtc MJg. Co.. 3^ ^ ^ Fed. Rep. 94 ^^ CO. Same- Deception in use of. ^^ -r. , Rep. /so; 69 Id. 740- ••:•■••■ ^°' 60. Assignability of trade-mark-Sale of^good will. Jloxic V. Chancy; Chancy v. Hostc, 143 Mass. • ■ • • • " * o o 592 2. By Act of the La-o. 61. Title acquired by judgment. Smith V. Smith, 5t N. H. 571 3^9 ". By Act of the Parties. (a) by gift. . 62. Gifts, inter vivos. , . ^ ,21 Wing V. Merchant, SI ^^'^'"''^^ ^^^' ' • ' ' ^^'^ 6v GMt^, cansa mortis. Basket V. Hassell, 107 U. S. 602 3-4 (n) BY SALE. 7. The General Principles. 64. Sale or bailment. . . Bretzv.Diehl,ii1^^-^^'S^9 ^34 65. Sale or lease. Loomis V. Bragg, 50 Conn. 228 33y ^Lm ANALYSIS OK THE SUnjFXT. xiii SECTIOV. 66 267 rty in pri- . . . • 271 . . . • 284 . . . • 290 >. Co., 32 . 296 m, 66 Fed. .d will. , 143 Mass. 307 313 319 . . . . 321 324 s. 334 339 67. 68. 69. 70. 72. 73- 74- 75- 76. 77- 78. 79' So 81 Executory sales. A/zc/rczi's V. D/tra/f/, ii"^.Y. T,^ 343 Tliinr, S2. Intention of parties the main test. Hatch V. Oil Co.. \oo\^.^. \2\ 445 Sale of chattels not specified — Necessity of separa- tion from mass. Chapman v. Shcpard, 39 Conn. 413 455 Whitcomb v. Whitney, 24 Mich. 4S6 463 Scott V. Wells, 6 W. & S. 357 467 Same — Acts to be performed by parties. Frescott V. Locke, z^i^.n. g^ 472 Same — Grain in elevators. Gushing v. Breed, 14 Allen, 376 4S3 Payment as condition precedent. Prt/^/f. /I'mA 55 N. H. X36 4S6 Delivery to carrier. Bailey v. Hudson River R. Co., 49 N. Y. 70. . 490 Goods sent C. O. D. Com. V. Fleming, 130 Pa. St. 138 494 State V. O'Neil, 48 Vt. 140 502 Goods sold on condition — "Sale or return." Dearborn v. Turner, 16 Maine, 17 506 Same — Sale "on trial" or "approval." Hunt V. Wyman, lOO Mass. 19S 507 Same — Sale of goods "to arrive." Rogers v. Woodruff, 23 Ohio St. 632 508 Rights of purchasers — Market oveit. Griffith V. Fowler, 18 Vt. 390 510 Rights of purchasers — Purchaser from thief. Hoffman v. Garow, 22 Wend. 285 514 Same — Rights of third parties. Colcv. Berry, 42 N. J. (L.) 30S 547 Coggillv. Hartford, etc., R. Co., 3 Gray, 545 . 553 Barker v. Dinsmorc. 72 Pa. St. 427 557 Same — The case of a voidable title. Easter v. Allen, 8 Allen, 7 559 Barnard v. Campbell, 55 N. Y. 456; 58 Id. 73.. 562 84. S5- 86. 87. 88. 89. 90. 91. 92. 93- 94. 95- 4. Warranties. 96. Implied warranty of title. Gross V. Kierski, 41 Cal. in. 573 ANALYSIS OF THE srnjECT. XV 1 of separa- Y. 70. • • 445 • 455 • 463 • 467 • 472 • 4S3 . 4S6 • 490 . 494 • 502 • 5«6 • . . . 507 • • • • 508 ief. . . . 510 • • • 5H • Gray > . 545 • 547 553 557 ; 58 Id. 73. • 559 • 562 SECTIOV. , . • 1 r 11 '„ 97. vSame— No warranty where sale is simply of seller s interest. Eichholz V. Bannister, 17 C. B. (N. S.) 70S. . 577 9S. vSame— Nor where goods arc not in seller's posses- sion. Gould V. Bimrgcois, 51 N. J. (L.) 361. . • • 5^^ 99. Warranty of quality — Express warranty. Osgoodv.Lc~.vis,2ll.8i.S.<.\c)^:) 5^9 100. Same — Oral warranties. Sciiz V. Brewers' Rcf. Mach. Co., 141 U. S. 510. 599 loi. Same — Expression of opinion. Bvrnc V. Jansen, 50 Cal. 624. ^°1 102. Same — Patent defects. McCormickv. Kelly, 2^ Unm. iSS ^°9 103. Warranty of quality— Implied warranty— Rule of caveat emptor. Barnard v. Kellogg, 10 Wall. 383 104. Exception to the rule of caveat emptor— Implied warranty that ^oods answer description. Wolcottv. Mount, 38 N. J. (L.) 496. .... 10- . Same— Afe all merchantable under that description. Hawkins V. Pcmbcrton, 51 N. Y. 198 106. Same— That article manufactured is fit for usual purpose. Randall v. Newson, 2 Q. B. Div. loa. . . • 107. Same— Article sold for particular purpose. Gcrst V. Jones, 7,2 GvAiU $1^ ■ loS. Same— Article sold by sample. Bradford V. Manly, 12, '^a^^- "^^9 109. Same — Article sold for food. Giroux V. Stedman, 145 Mass. 439. . • • 5. The Performance of the Contract of Sale. 1 10. Mutual conditions precedent. See Paul v. Reed, ante, § 4S6. 111. Place of delivery. Jatiney v. Steeper, 30 Minn. 100. 112. Delivery to carrier. Magruder v. Gage, 33 Md. 344. 613 621 626 634 643 650 655 • 659 • 659 . 661 573 XVI ANALYSIS OF THIi: SUBJECT. 7; v'fieliverv of right quantity-Successive deliveries. 6. The Remedies for the. Breach of the Contract of Sale. I II The seller's remedies— Action for purchase price. Shau'han v. Van Nest, 25 Ohio St. 490. •••679 115. Same— Re-sale. ^ ^ ^^^ Diistau V. McAndrew, i,\^'^'1'^ 116. Same— Action for damages. //c;.9Wropertv. he devises all the right and interest which he has in any lands or real estate. If he has a right in fee simple a fee passes, otherwise the will is not complied with ; for if the devisee takes but an estate for life, he does not take all. but only part of the devisor's property. Many cases were cited on the argu- ment. I think it unnecessary to take particular notice of any of them. It is a principle undeniable that when the words of a will indicate an intention to pass the whole interest of the devisor, the devisee shall take a fee. Being clearly of opinion that such an intention is indicated by the expressions of this will, it follows that Steele Semple took an estate in fee in al the real estate of Samuel Semple. The judgment of the cour of common pleas must therefore be reversed, and judgment entered for the plaintiffs in error. Judgment reversed, CoNsr.T-Tackson v. Housel, 17 Johns. .81 ; Russell v. Ralph 53 ^Jis^ V. Railroad. «4 N • Y 565 ; f - I.u 1 N .^ -,^ ^^^^ ^^^^^^^ :: C;,Lln.V''Mo^'.'n Town of PaHs v. Fan.e.s Ban., 30 Mo. 575; Kellogg V. Blair, 6 Mete. 3^2. OPEllTY. TIIK CIIAUAC TIIUSTICS OV I'lCKSONAI, IMlDl'liUTY, le testator dcsig- a/l his "CaxI ami sions move com- ma', property by same interest lU jrsonal property, one has in lanil rned and uiilearn- fincl it so defined st autliors. The 1-hcrtv in another. flit of property. tions not only the , and property of mon conversation is the property of vises all his real t which he has m 1 fee simple, a fee ; for if the devisee all, but only part cited on the argvi- ilar notice of any hen the words of a le interest of the clearly of opinion expressions of this estate in fee in all ^ment of the court sed, and judgment Judgment reversed. issell V.Ralph, 53 Wis. e, 79 Ind. 13; People 20; Leonard v. Laur- 4 Kla. 359; Ciuniiiings farmer's Bank, 30 Mo. § 2. Qualified property.- In the light. IIUnUARD V. TOWN. Supreme Court of I 'eriiiont, j86o, [3.? vt. -95O PiHitroiNT, J. — This action is lirought tn recover the damn.-e claimed to have been sustained by the plaintiff in consecpiPiu-c- of the defendant's obstructmg his lights. It appears fronj t!ic case tliat the building, which has been owned and occupied by the plaintiff and his tenants for more than twenty-live years prior to the acts complained of, stands upon the line between his premises and the premises of the defendant, and that the defendant has owned and occupied his premises during the aforesaid period ; that the windows in the plaintiff's building opened out toward the premises of the defendant, admitting liglit from that direction, and that they have so remained with- out obstruction and without (juestion on the part of the de- fendant for the period of twenty-five years or more; that in 1S59 the defendant erected a building on his own premises innnediately adjoining that of the plaintiff, so as to exclude the light from two of the plaintiff's windows. The only question involved in this case is, whether the plain- tiff, by such long and uninterrupted use of his windows, and the light passing through them, has thereby acquired the right so to continue his windows and thus to have the light pass through them, so that any act of the de'fendanb which shall materially obstruct such light will make him a wrongdoer, and liable for luiy damage to the defendant that m'ay ensue therefrom. The rule seems now to be well settled in England, that such long and uninterrupted use of light gives the right to continue its use, and to insist upon its remaining unobstructed by the adjoining proprietor for all time. The courts place this upon the same ground as rights of way, and other rights acquired in and over the premises of another by long a.id undisturbed use; presuming from the long exercise of the privilege by the one, and an acquiescence therein by the other, that the right had its origin in a grant. -.^■^ nail fi TIIK CIlAUAiTKUISIKs ..!■ .■I...S..N AI. PUO.'EUTY. While tl.e Kr..c-ral .luelrine Ik.s been universally adoptc.l in this country, its application to cases of this kin.l has not bcc-n t,H.ncrally rcc..«ni/.c.l, an.l in n,any of the states has heen ex- ijvesslv (Uiiied. . Onrstatntc of limitations can not U hron^ht n, aul of the p,,i,Uiff's claim. The statute in terms only deprives the a.^,rievc.l par.v of the rij^ht of action after the myte.l penod ,-,t, the tin,e -the cause of action accrues, and al.hon,d. on, courts lave held that the exercise of the ri«ht by <.ne party, and an acc.uiescence therein by the other, for such P--'- -;;^ i., Uu. partv so exercisin^^ it an absolute ri.ht. stdl n> deter- mininj tlH. question whether such ri«ht has in fact l>ecome an absolute one. the time that the one has so exerc.scd >t .8 to be computed fron, the period when a cause of act.on therefor fnst accrued to the other, which he has omitted to e., force ; so that n.. riKht can be lost or acquired by virtue of the statu e ^vherc. there has been no act done by the one for wluch he law gives a remedy by action to the other; and ,t .s conceded in this case that the defendant had no ri<,dU of act.on a^.uns the plaintiff for any act of his in ereclin.^ h.s bu.ldmu^ and opening and continuing his windows on the side adjonuug to and overlooking the defendant's premises. This reason would seem to apply with equal force agamst the plaintiffs right to recover on the ground that a u^^mt will he presumed from lapse of time to sustain his claim. The principle upon which a grant i. presumed is, that in no other way can the acts of the parties be rationally accounted for Such presumption is required to account for the exercise of 'the right by the one, and the acquiescence therein by the other, for so long a period. The right must be exercised ad- versely or under a claim of a right so to exercise it by the one, and it must be acquiesced in by the other. -This of itself pre- supposes that the exercise of the right by the one, without a .rant, is a violation of some right of the other; otherwise it conldnotbe adverse within the meaning of the rule ; neither could the other acquiesce, for that presupposes a legal right to o!. there was no interference with the lights of the defendant, it is diffi- cult to see upon what the presumption of a grant can be based. Lapse of time and the presumption arising therefrom are re- sorted to only to justify in one that which would otherwise be a usurpation of the rights of anotlier. If a man can acejuire, by use. a right to an uninterrupted enjoyment of light under circumstances, like the present, why not .acquire a right to a like enjoyment of the prospect from the same windows, or to a free access of the air to the outside of his building to prevent decay, and many other rights of a simi- lar and no more ethereal character.' The result of which would be, if allowed, an utter destruc- tion of the value of the adjoining land for building purposes. Windows are often of more importance for the prospect they afford than for the light they admit. The light may be ob- tained from other directions, the prospect can not. A pleasant prospect from the windows of a dwelling always contributes more or less to the enjoyment of the occupants, and often enters largely into its pecuniary estimate. But to admit that a mere f ■^sK y ' jg'ff ' "' JTr- 8 THE CHAUACTERISTICS OF PERSONAL rnOPERTY. "'sX,c^^ right c»„ bo »cquired by use, for .he same ,e»so„ ,„^ ircKerdse by on= is no i„tri„sen>e„. o. he ngl, s o !;ler,.or .hieh .he ,». .ives an -«;;• ,, ^^ - .; ;: '-'":""";' :':r'r::;'niw a ;.;,:;';. ph,in.i«'s ..iv^cy """'ob Xr.^i. he book,, he hnd .-.ever l.„o.v„ snd, an :c«o:.o bet'at ed, and .ha. he had heard i. h.id do.,, by r > Ch T that such an action did not lie. w'eUnk'd, English courts in applying .he doe.rinee of .he „,. slptno grailfs fron, long use and aequiescenee .o . .s ir:f'eases. cfearly depar.ed .-;-_»"- ^^^^Z "■" -Jt'sers" o";,s":: .i:.-s L P.ach:;cases ... ... prese„. -?-i;,,.^:hr:^:u:etnr:in;^^;;;ra:;i r" had li"h ts at the end of U, if the owner of the adjou.ng Hit:irir.::::::;r:tth-i;r e d . • • that .»cnty years was sulHcent .o g,ve a ; title in eieetment on which l,« niay recover .he house 3 a le L no reason why it should no, be suffleion. .o e, .m o an easement belonging to the house. ■ As we r r ,lre"lv seen, no presump.ion of an agreemc, ar.ses, as ha%e ahead} s.en, , ^^^^^ occupies „„,„ was "'^^^^y^J^'^^ ,3 „„ utter title to i. at the '"^°T t,T.im .han he'l ad in .he ou.set, Does he acquire ::; °L*:; rigTt .' .he ugh. by .he occ„pa.io„ .ban .o the ^:er:tr:who":ar possession of his neighbor, house ^,ov; L PROPERTY. years gives him the ■rupted fo>- all future t variance with well- be tolerated in this > , for the same reason nent of the rights of ,n. Le Blanc, J., in 5: '-That although an he plaintiff's privacy iiever known such an heard it laid down by lie. ig the doctrince of the d acquiescence to this ancient common law i-o. Eliz. 118, and the Ig cases like the present n subject to the same .which they really have nd. 175«, Wilmot, J., built forty years, and owner of the adjoining :>stvuct them, an action ason as where they have ;h to induce a presump- ement between the par- was sufficient tci give a ; may recover the house uld not be sufficient to to the house." As we an agreement arises, as The man who occupies better title to it at the nitset. Does he acquire 1 occupation than to the lit, he can acquire none asoning is in saying that I of his neighbor's house HUnnARD V. TOWN. 9 and holds it adversely for twenty years (his neighbor aquiescing llicrein) accjuires a title to it, therefore the man wiio opens windows in his own house that in no way interfere with the liirhts of his neighbor, and of which such neiglibor has no legal nijht to complain, and keeps them open for twenty years, thcrcbv acciuires a rigi.. co insist that no act shall be done by Ills neighbor on his own land that in any respect interferes with or obstructs the light to those windows. In the one case there ,s an infringement of the rights of another for which the law aivcs a remedy by action; in the other there is not. This constitutes a radical difference iietween the two cases, and that, too, in respect to the very point upon which tiie whole doc- trine of presumption in cases like those under consideration depends. It might be urged with much force that a man who conveys a house'' with the privileges, etc., would not have a right to make an erection on his own land adjoining that .vouid shut OMt the light from the windows in the house so conveyed, and it may be said that he who lias occupied another's house for such a length of time and under such ci-.-umstances that a grant will be presumed, stands upon the same footing as an ordinary grau.ee. However that may be, this case involves no such question. In those cases the question turns upon the fact that the title to the premises was derived by deed, actual or pre- sumed, from the party who seeks to deprive his grantee of the enjoyment of the right he has conveyed. The right does not depJnd upon the lapse of time, but is as perfect in the grantee the moment the deed is executed as it can ever be. Here the tide to the premises of the plaintiff was never in the defendant, but has been in the plaintiff through the whole period. This question was fully considered in New ^I'ork, in the case of Parker v. Foote, 19 Wendell, 309. Bronson, J., says: '•Upon what principle courts m England have applied the same rule of presumption to two classes of cases so essentially differ- ent in character I have been unable to discover. If one commit a daily trespass upon the land of another, under a claim of right to pass over, or feed his cattle upon it, or divert the water from his mill, or throw it bick upon his land or machinery, in these and the like cases, long continued acquiescence affords strong ,/resumption of rijrht. But in the case of lights there is no ad- lO Tlir. CIIAKACTKIUSTICS OF PERSOXAL PROPEIITV. verse user, nor, Mi-- '" ^^°th of which cases the subject was fully discussed. We see no reason growing out of the nature or necessities of this class of cases that require us to extend the doctrine of the presumption of grants to them: but, on the other hand, the establishment of a rule that would require a man to erect a buildincr or wall that he did not need on his own premises, for the sole purpose of excluding the light from his neighbor's windows, would lead to continual strife and bitterness of feel- ing between neighbors and result in great mischief. The judgment of the county court is affirmed. CovsvLT-Dovle V. T.ord, 64 N- Y. «7 ; => Am. Rep. 6.7; Ward v. Neale ^7 Ma. "s<»; Keats v. Hugo, 115 Mass. 204, 15 Am. Rep. 80; Cherr'vv. Stern/iiMd. i, Powell v. Sims. 5 W. Va. ., 1.? Am. Rep. 629; Mullen V. Strieker, 19 Ohio St. 135. ^ Am. Rep. 379; Kle'- -^^'"""f ' 2, Tex. Sup. 232, 78 Am. Dec. 565; I'lerre v. FernaUl, 26 Me. 436, 46 Am Dec. 573; Morrison v. Marquardt. 24 Iowa, 63, 92 Am. Dec. 444! Stein V. llauck, s6 I"d. 65, 26 Am. Rep. 10; Ray v. Sweeney, 14 Hush. I 29 Am. Rep. 383; Lapere v. Luckey, 23 Kan. 5.34, 33 Am. Rep. 196; ■ Guest V. Reynolds. 68 111. 478, 18 Am. Rep. 570; Hayden v. Dutcher, 31 N. J. (liqO -!'7- § 3. Qualified property.— In the air. BRYANT V. LEFEVER. [4 C. P. D. 172.] English Court of AppcaK 1879. Claim alleged that the defendants occupied premises adjoin- in i _. Mwwa-" ,2 TI.E CllAnACTElUST.CS OF PEBSONAI. PROPERTV. ,h. ,vhul blcv to, over, .,,1 Com i., and thn. h= l'-' - J" f-". 1 ti,P ri^rht that it should continue to do so; that tne ae ::^:1 ..^ 'rted with this ri.ht and prevented the fee Se::::nd dep^tu. o^ the winds ; he ^ds ^^y^^^ mitted a nuisance to him as so possessed. He has p m Z is no.sessed of a house move than twenty years old , that tic ^ C^ilcess to it and passage over it fortw..ty years w.U. out the hindrance recently caused by the ^'^f^l;^f^^ defendants have caused a hindrance by puttmg on the loot tl e 1 o e (which is as old as the plaintiff's), timber, to aeon- ^d!^:;:;: hi.ht, thereby preventm. the wind blo..n. o and over the plaintiffs house when in some directions, and pass.n r; y om it when in others; that this causes ^^^ '^^---yj .^, IL, as they did not before, to the extent o be.n am- s.nce The question is, if this shows a cause of action. J ust, . is th ri'ht of the occupier of a house in relation to air i;X-^enti;of length of enjoymentP It ^^^^^^Z^t Vhich land and its owner or occupier have; it is -^ ^ ^^^ c.use a house has been built; that pnts no greatei buukn or d bi ity on adpinin, owners. What, then, is the n,ht of and .u owner Jr occupier? It is to have all natural n.cident nd advantages as nature would produce them; here . r gh to all the light and heat that would come, to all the "'" tnat vou Id f 1 to all the winds that would blow; a right that the Tain which would pass over the land, should not be -^topped and made to fall on it; a right that the heat from the sun should no b stopped and reilected on it; a right that the w-l s-ld n be checked, but should be able to escape freely; and ,t it weic possn le Unit these rights were interfered with by "- -.ng no ri.ht, no doubt an action would lie. But these natur tights a^er, Object to the rights of adjoining owners, who, for the ben- efit oi the community, have, and must have, rights in relation to the use and enjoymeiu of their property that qualify and inte - ee itl>thosi/f their neighbors' rights to use their property Lhe various ways in which property is ^^^-^^fy^^'^t'Z ul V used. A hedge, a wall, a fruit tree, would each affect the Hnd nit to which U was planted or built. They would keep o« some light, some air, some heat, some rain, when com.ng from one direction, and prevent the escape of air, of heat, o Zd. of rain, when coming from the other. But nobody could OPEUTV. c has, as so pos- o; til at the de- jvented the free t they have corn- has proved that ars old; that the venty years vvith- ndants; that the y on the roof of timber, to a con- blowing to and ions, and passing his chimneys to of being a nui- ; of action. lursf, in relation to air the same as that t is not greater be- Tveater bnrdcn or is the right of land natnral incidents m ; there is a right , all the rain that ; a right that the not be stopped and 1 the sun should not ;he wind should not ely ; and if it were til by one having no hese natural rights 1, who, for the ben- rights in relation to t qualify and inter- use their property ommonly and law- would each affect the They would keep rain, when coming of air, of heat, of r. But nobody could HKVAXT V. LEFEVER. 13 doubt that in such case no action would lie ; nor will it in the case of a house being built and having such consequences. That is an ordinary and lawful use of property, as much so as II to the building of a wall, or planting of a fence, or an orchard. Of course the same reasoning applies to the putting of timber on the top of a house, which, if not a common, is a perfectly lawful act, and it would be absurd to suppose that the defend- ants could lawfully put anotV-er story '.o their house with the consequences to the plaintiff of which he complains, but can not put an equal height of timber. These are elementary and obvious considerations, but if borne in mind will assist very materially in the decision of this case. The plaintiff, then, merely as possessed of land or house, has not the right claimed. But he goes further and says, that the liouse and its owner and occupiers have had the enjoyments of tills benefit for twenty years. He, therefore, relies on that as showing a prescriptive title, or title by lost grant. Whether he has so stated his claim as to vahe such a case, it is lot necessary to say, for we are of opinion that, even if he has, he has not established it, that no such right as he claims can be established by mere enjoyment without interruption for however long a period. It certainly can not be claimed under the Prescription Act (3 and 3 VVm. 4, C. 71), nor can it by lost grant, unless of such a character that it could be claimed by the common law I'.rescription, for the expedient of a lost grant is only applicable to cases where something presents the application of the com- mon law prescription; we do not say there might not be an express grant or covenant not to interfere with the passage of iiir over neighboring property which could be enforced against the grantor or covenantor or even against his assigns with notice, or whether it could against assigns without notice it is not necessary to say. But the lost grant doctrine is ancillary to ihe common law prescription doctrine ; can this right then be claimed under that.' Now, certainly, the land as such has t njoyed this of right for all time, since the sun first shone and the wind first blew ; and it is not a case of twenty or any finite luimber of years. But that enjoyment is the result of the natural right of which we have spoken, and not of an acquired light. Then does the existence of a house on the land for iwenty years make any difference? None. The owner of the 14 TlIK CII.MIAITKKISTICS Ol' IT.llSONAI. I'UOl-KRTV. lan>l cnjovcd the free passage of the air over his h.nd, when it ^vas a Held, subject to the right of his neiglibors to build on their own land or to do on their own land any lawful act. lie now enjovs it over his land with a house on it subject to the same riglUs. If the house on his land is less commodious by reason of any lawful act of his neighbor done on the adjoining land, then, to use the expression of the judges in liuiy v. Pope. Cro Fli/ iiS, "it was his folly to build his house so near to the other's land." It may be said that if this reasoning is cor- rect, it is applicable to lights; so it is to a great e^tent, and anyone who reads the cases relating to the acciuisition of a right to'li-iit will see that there has been great ditticulty in estalibsh- ingU on principle. WiUes, J. says it is anomalous; Webb V. Bird, lo C. B. (N. S.), at p. 3S5, and per Blackburn, J., Webb V. Bird, 13 C. B. (N. S.), at p. 844. In the case referred to of Bury v. Pope, Cro. Eliz. iiS, it was held that where there are owners of adjoining pieces of land, and one builds a house, and for thirty or forty years has access of light to it, yet the other may build a house adjoining and shut out the light. This shows the general principle, though the law as to light is now different, as a right is gained to it by enjoyment. But there is this difference between the present claim and the claim to light. The right in that case is always limited to the particular window or aperture through which the light and air have had access ; it is one, therefore, against which an adjoining owner can defend himself by blocking it up within the period necessary for the gaining of a right. Lord Wensleydale (see Chasemore v. Richards, 7 "• L- ^ 349> «t p. 3S5), thought this a very strong thing as a great burden on the adjoining land owner. But here the claim is of such a character that its enjoy- ment could only be prevented by surrounding the land with erections as high as it might at any time be wanted to bui d on the land. The principle of Chasemore v. Richards, 7. H. L. C. 349, is applicable., namely, that the right claimed is not the one the law allows, being too vague and uncertain; one the acciuisition of which the adjoining owner could not defend him- self a-ainst; and that the remedy of the plaintiff in such a case as thil is to build higher, as in such a case as that it vyas to dig deeper We are of opinion that on principle the plaintiff fails to make out his right as claimed; the authorities are to that 'W'U ^■i ■lUH'KRTV. his land, when it hbors to builtl on V lawful act. lie )n it subject to the s commodious by ; on the adjoininjj; s in Huiy v. Pope, house so near to s reasoning is cor- great extent, and quisition of a right ficulty in estahlish- nomalous ; Webb per Blackburn, J., 844. In the case S, it was held that ;s of land, and one has access of light >ining and shut out :, though the law as to it by enjoyment, sent claim and the jvays limited to the ch the light and air t which an adjoining 3 within the period 1 Wensleydale (see at p. 3i>5)i thought n the adjoining land iracter that its enjoy- nding the land with ; wanted to build on . Richards, 7. H. L. ht claimed is not thc l uncertain ; one the ould not defend him- aintiff in such a case ; as that it was to dig iple the plaintiff fails ithorities are to that nitVANT V. I.KKEVEH. 15 effect. Webb v. Bird, 10 C. 15. (N. S.) 26S ; in Ex. Ch., 13 C. H. (N. S.) 84 1, is really in point. It is true that in that case the mill appeared to have l)een built in 1S29. I believe the date of the building of the plaintiff's house in this case did not appear; it will hardly be- supposed to l)c one hundred years old. Hut the reasoning in that case would be equally applicable to a claim by prescription from time whereof the memory of mail runneth not to the contrary, if the date of the building of the phiintiff's house couUl not be shown. It is really hardly nec- essary to notice the other cases, which are sufliciently dealt with by the judges in Webb v. Bird, 10 C. B. (N. S.) 286, in Ex. Ch., 13 C. B. (N.S.) 841. We may,however, mention Rob- erts V. Macord, i Mo. iS: Ro. 230, where I'aterson, J., was of opinion that a claim like the present could not be supported. All the reasoning and all the considerations in Chasemore v. Richards, 7 II. L. C. 349, are opposed to it. WHiere it has been said that there is a right to air, there is good ground for supposing that the wholesomeness of the air had been interfered with, or that there was some peculiarity in the land or building which made the air necessary in a definite place. We are of opinion then, that the action can not be maintained on this ground. But it is said that the jury have found that the defendants have done that which has caused a nuisance to the plaintiff's house. W^e think there is no evidence of this. No doubt there is a nuisance, but it is not of the defendant's causing. They have done nothing in causing the nuisance. Their house and tlieir timber are harmless enough. It is the plaintiff who causes the nuisance by lighting a coal fire in a place the chim- ney of which is placed so near the defendant's wall that the smoke does not escape, but comesj into the house. Let the plaintiff cease to light his fire, let him move his chimney, let liim carry it higher, and there would be no nuisance. Who, then, causes it? It would be very clear that the plaintiff did, if ho had built his house or chimney after the defendants had put up the timber on theirs, and it is really the same, though he did •■o before the timber was there. But (what is in truth the same answer), if the defendants cause the nuisance, they have aright to do so. If the plaintiff has not the right to the passage of air, except subject to the defendants' right to build or put tim- Ts -ji.^4uWr^.*-^ - -u:;j!i- ' ': ^ ,6 THE CHAKACTEUISTICS OF PERSONAL PnOPERTY. bers on thei. house, then his right is subject to ;Hci'^n|||>t^ thougl> a nuisance follows from the exercse of then sht, they nre not li'ible Sic utcrc tuo ut alicuun, mm lacdas s a ZT^.^^^ in our opinion the defendants do not .nfrn^ge it; the plaintiff would if he succeeded. Cotton, L. J.-This is an appeal of the defendants from a Uuh'ent of Lord Coleridge, in favor of the plan. ,ff, n. rrsp^rr of the interruption of air to the plaint.ffs chu.ney caused by the defendants. ^^^ ^^^,^ Thp iurv have found, Jirit, tnat tncii. than tJ I years, free access of air to the chimneys of he „1 ant Ufs house ; sccond/y, that the defendants' wall sens.bly an mlrially interfered with the comfort of human existence ^tl^^dntiL premises ; J^.rm. that U.e plainti f sustau.ed dnma-e /•40 by the buildin- of the defendants wall. ^ '■'The first q'uestion is whether the plaint.ff ^-^^ -^her s a ♦ 1 ,\„U of m-onertv or as an easement, a right as agamst »„y interruption by the defcJ.tnts. In my opnt.on nc hn> '"fnmfolHnion it wonl.l be , contrn.iiction in term, to say ,„ t a ma°„»» a natural r,„h. against !■« '"^■f"^ '"""'Tn!. ifri;:r=,s;r^:^r^-:fr^^ rignt 10 Mipi'w ^..ni-iort he n the absence of „«r1 thprebv requ res an mcrcascd suppott, ne, u.c o U 'e ul erupted «ow of air to his ehimney must therefo e bet w"y of easement. Cases to prevent or to cla.m damage fc, intXuce with aneien. iigh.s, are '«=.»«"«y J*:"; ," cases of light and air. But this ,s tnaecurate^ J.^'o light, 1 relate solelv to the nterference with the access or 115, , :*', o ease 1 any injunetiou been granted to -""■-"'- ••>, fliP access of air. It is unnecessary to say :S:r ir*; nnilrntpted How of air through a de«,,Ue nOPERTY. tlUVAN T V. I-EIEVER. ;o their rifjht and [ their r'^ht, they on lacdas," is a ts do not infringe ;lc{cnclants from a ; the phiintiff, in ilainliff's chimney lave been for more ic chimneys of the Units' wall sensibly f human existence ; plaintiff sustained iits' wall. tiff has, either as a t, a right as against lis chimney without y opinion he has no tion in terms to say ;ighbor in respect of ul not a user of the igainst his neighbor, shown by the cases lese show that while ly of user, a natural buildings to his land he, in the absence of iuch support by user, f any, of the plaintiff iney must, therefore, t or to claim damages ^quently spoken of as •ate. The cases, as a 1 the access of light, anted to restrain inter- iS unnecessary to say ir through a definite aperture or channel over a neighbor's property has been enjoy- ed as of right for a sutlicient period, a right by way of ease- ment could be acquired. No such point is made in this case, and I am of opinion that a right by way of easement to the access of air over the general unlimited surface of a neighbor can notbeacqnired by mere enjoyment. Forthis. Webb v. Jiird, lo C. B. (N. S.), 36S; in Ex. Cli. 13 C. 15. (X. .S.) 841. is an authority; and, as the last decision in tliat case was in the l.Nchiquer Chamber, it would be sutlicient to lely upon tlie authority of that case. But I tiiink it better to say that I iiitirely agree with that decision and witli the reasons given in this case by Bkamwei.i,, L. J. In my opinion, therefore, the plaintiff has no right in respect of the tlow of air to or from his chimney. livery man, however, has a natural right to enjoy the air, jnne and free from any noxious smells or vapors, and anyone who sends onto his neighbor's land that which makes the air there impure, is guilty of a nuisance. Here it is found that the erection of the defendant's wall has sensibly and materially interfered with the comfort of human existence in the plain- tiff's house, and it is said this is a nuisance for which the de- Icndants are liable. Ordinarily this is so. but the defendants iiave done so not by sending onto the plaintiff's property any Mnoke or noxious vapor, but by interrupting the egress of smoke Irom the plaintiff's house, in a way to which, as against the defendants, the plaintiff has no legal right. The plaintiff creates the smoke which interferes with his comfort. Unless he has, as against the defendants, a right to get rid of this in tlie particular way which has been interfered with by the de- Irndants, he can not sue the defendants, because the smoke made by himself, for which he has not provided any effectual means of escape, causes him annoyance. It is as if a man tried to get rid of liquid filth arising on his own land by a drain into his neighbor's land. Until a right hr.d been acquired by user, the neighbor might stop the drain without incurring liability by so doing. No doubt great inconvenience would be caused to tlie owner of the property on which the liquid filth arises. But the act of his neighbor would be a lawful act, and he would not be liable for the consequences attributable to the fact that the » 33^3«f£"5^;^iE®5*' ..--ia.!-.M ! 4!*.a'.J -:■>■., .-tf-W W ,S T.iU U.A.CAC.KH.STICS OF .-KHSONAI. ..ROrERTV. man Inul accumulated llUh witl.out providinj^r any effectual means of ircUini; lid oi il. . ^ i Tan. of upinion that ths judgment appealed i.om n.ust l,c '■*''''''"''^' Jud-mcnt for the defendants. 64 Miss. 4S3. 60 Am. Uep. 62; Dexter v. 1 rce, 11, HI. ,.2, ^""'-^ Pierce, 7 Giav, iS, 6 Am. Dec. 453- § 4. Qualified property.-In the water. DUMONT V. KELLOGG. [;9Mich. 42o;i8Am. Rep. 4-^0.] Supreme Court of Michigan, 1874. Coo, FY T -The grievance complained of by Kellogg in the com"elo:v.a.that Dumont had constructed a dam across °U ! vater-course and by means thereof wrongfully detamed "in the .trcam to the prejudice and injury of the plam- « h was proprietor of a mill previously erected on the ^■u clow. tL reservoir created by defendant's dam wa^ cu t a b.-.e one, and plaintiff gave evidence that the flow Ta tr n the stream below was considerably dimm.shed by the Tc e.. ed vaporation and percolation resulting from the con- s ; ;• n ot this dam. The plaintiff had judgment n. the cou, b low nd the case comes here upon exceptions, the erro . p ■ ; Iv relied upon being assigned upon the n.struct.ons to h hr and involving the relative rights of ripar.an proprietors to make' u^e of the w^Uers of a running stream wh.ch .s common tn both and to delay its How for that purpose. r»f t)i(>c;t> ire the following: — , .Fver proprietor of lands on the banks of a stream a,.l ever' m l-vner has an ec,ual right to the flow of wa er m th. „ it was wont to run, without diminution or alteration, t: m PROI'KIITV. iny any effectual led from must be for the defciulants. bha-.il v.Town" refer •. l?(K\i(l of Aldermen, 7 111. 532; Collier v. nUMONT V. KHI.T.Or.G. 19 G. ;o.] of by Kellogg in the cted a dam across '^ wrongfully detained d injury of Hie plain- )usly erected on the Icfendant'h dam was ence that the flow of ly diminished by the uilting from the con- judgment in the court xceptions, the errors on the instructions to 3f riparian proprietors earn which is common rpose. and the most of them , be based upon a view [ with the authorities. uiks of a stream and le tlow of water in the minution or alteration; DO proprietor has 'he riglit to use the water to tlie prejudice ni the proprietors below him without the consent of the projirielors I'olnw; lie can not divert or diminish tiie (|iiautitv wiiicli would (ilherwise descend to the piojirietors below. '•He must .so use the water as not mateiiMlly to affect the aiiplication of the water below or n^iterially diminish its (jiiaiility. '•If the jiuy find from the evidence th.-it Dumont's dam and pond have diminished, by the increased evaporation and soak- age occasioned by it, the flow of the water in the Dumont Creek cue third, or any other material amount, and tiiat the jilaintiff has sustained ilamages thereby, then tiie plaintiff is entitled to recover in this action. "The rights of a riparian proprietor are not to be measured bv the reasonable demands of his bnsiness. Jlis right extends to the use of only so much of the stream as will not materially diminish its quantity, so that in this case the question whether defendant needs the water as he uses it in his business is entirely immaterial. "The defendant had the right to build a dam upon his land, but he must so coust'-uct the dam and so use the water as not to injure the plaintiff below in the enjoyment of the same water, according to its natural course." In endeavoring to determine the soundness of these instruc- tions, we may dismiss from the mind the fact that the plaintiff had first put the waters of the stream to practical use, since that fact gave him no superiority in right over the defendant- The settled doctrine now is that priority of appropriation gives to one proprietor no superior right to that of the others, unless it has been continued for a period of time, and under such cir- cumstances as would be requisite to establish rights by prescrip- tion. Piatt V. Johnson, 15 Johns. 213; Tyler v. Wilkinson, 4 Mason, 397;Gilman v. Tilton, 5 N. H. 231 ; Pugh v. Wheeler, 2 Dev. ^ 'iat. 50; Hartzai: v. Sill, 12 Pa. St. 24S ; Gould v. r>oston Duck Co., 13 Gray, 442; Wood v. Edes, 2 Allen, 57S; Parker v. Hotchkiss,25 Conn. 321 ; Heath v. Williams, 25 Me. 209; Snow V. Parsons, 28 Vt. 463; Bliss v. Kennedy, 43 III. 67: Cowles V. Kidder, 24 N. H. 37S. It is not claimed that any question of prescription is involved, and the case is conse- quently to be regarded as only nreseuting for adjudication the ,^5BS aSi^.^.'«m^''': " :gy"^"^ ' -^'*^ ' - '' ^-- 2„ Tin: CHAHA. ,.:.MST..S or rKUSONAL PKOfKRTV. relative ri.M.ts ot tl.e parlies at tl,e common lawt.. n.akc use of the Mowing: waters of the stream, unaffected by any excepl.onal circumstanccH. , , .1 ^..t^„t A,ul in consi.lcrin,^ the case, it may be remarked at the ont.et t,,a, it differs essentially from a case in which a stream has been diverte.l from its natural course and turned away from a proprietor below. No person has a r-Rht to cause such a d.ve,- ion. and it is whoUv a wron,.ul act, for which an act.on wd ,i, ,H,,„.,t p,.o..f of special dan,a,e. It differs, also, from Ha case of an interference by a stranger, who, by any means, or for any cause, diminishes the flow of the water ; for th.s a so .s .d'dly wrongful, and no question of the -— f^^'-^-;/, action in causing the diminution can possd.ly ar.se. And had the instructions which are excepted to been given w.th icte- ence to a case of diversion, or of obstruction by a stranger, the broa.l terms in which the responsibility of the ^l^-'--^-^ - l,ia ,iown to the jury might have found abundant 3ustd.cat.0n in the authorities, , . , Hut as between two proprietors, "eitber of vvho.n has acq,..red superior rights to the other, it can not be sa.d that one "1 as no :■. Iht to us: the water to the prejudice of the proprietor below him " or that he can not lawfully -diminish the quant.ty wh.ch woubl descend to the proprietor below," or that "b. must so use the water as not materially to affect the appbcat.on of the water below, or materially to diminish its quant.ty Such a nde would be in effect this: That the lower propr.etor must be allowed the enjoyment c his full common law r.ghts as such not diminished, restrained, or in any manner l.m.ted or quahh d by the rights of the upper proprietor, a.Kl must recc.ve the Tater in its natural state as if no proprietorship above him existed. Such a rule could not be vhe law so long as equality of right between the several proprietors w s recogn.zed, for it .s nTanifest it would give to the lowe- proprietor -P-'-" ^ ^J " tages over the upper, and in ma.iy cases g.ve h.m m effect a monopoly of the st.eam. r 1 , Cases may unquestionably be found in which the rule of law is l-iid down as broadly as it was given by the circuit judge .n ; ; c se ; but an examination of them will show either that the nets were essentially different, or that the general language was qualified by the context. Thus the language employed m fe, PllOIM-.IlTY, DUMONT V. KEM.rKiO. at aw to iiiiikc use of jy nny exceptional arkeil at the oiitaet lich a stream has i-neil away from a cause such a ilivcr- hich an action will fers, also, from the y any means, or for tor; for this also is asonablcness of his ly arise. And had {riven with rcfer- 11 by a strans^er, the the defendant was undant justification [ whom has acquired lid that one "has no he proprietor below h the quantity which r that "1k' must so ; application of the quantity " Such a wer proprietor must )n law rights as such, ?r limited or qualified lid must receive the ■ietorship above him so long as equality of recognized, for it is ietor superior advan- Tive him in effect a which the rule of law f the circuit judge in 11 show either that the the general language language employed in till- first instruction as above given seems to have been quoted hoin I.onl Tente'-den in Mason v. Hill, ,:^ M. i\: i\dol. 31 J. r.ut th'-re it had reference to a case of diversion of water, and \\as strictly accurate and apiJiopriale. The same language Milislantially is made use of in 'I'wi-s v. Haldun;. '^Conn. J91 ; Wadsworth V. Tillotson, i^ Conn. 373: Ainold v. lM)ot, \i Wend. 331 ; and probably in many other cases, and is adopted l.y Cliancellf)r Kent in his Commentaries (vol. 3, p. 431;). See also r.caley v. Shaw, f> I'^ast, ioS ; Agawam Canal Co. v. I'.dwards, 36 Conn, .pj; ; Williams v. Morland. z H. iS; C. 913; Mason V. Hill, 5 H. iV Adol. 1 ; Tillotson v. Smith, 32 N. II. (,T. Hut as between different proprietors on the same stream, the right of each (jualilies that of the other, and the question always is, not merely whether the lower proprietor suffers dam- a<4e bv the use of the water above him, nor whether the (pian- lity flowing on is diminished by the use, but whether under all the circumstances of the case the use of the water by one is leasonable and consistent with a coi respondent enjoyment of rij;lit by the other. "Each proprietor is entitled to such use of the stream so far as it is reasonable, conformable to the usages and wants of the community, and having regard to the progress of improvement in hydraulic works, ard not inconsistent with a like reasonable use by the other proprietors of land on the same stream above and below." Shaw, Ch. J., in Cary v. Daniels, 8 Mete. 477. "The common use of che water of a stream by persons having mills above, is frequently, if not gen- erally, attended with damage and loss to the mills below; but that is incident to that common use, and for the most part una- voidable. If the injury is trivial, the law will not afford redress, because every person who builds a mill does it subject to this contingency. The person owning an upper mill on the same stream has a lawful right to use the water, and may apply it in order to work his mills to the best advanta-^c, subject, however, to this limitation: That if, in the exercise of this right, and in consequence of it, the mills lower down the stream are lendered useless and unproductive, the law inthatcase will interpose and limit this common right so that the owners of the lower mills shall enjoy a fair participation." Woodworth, J., in Merritt v. Brinkerhoff, 17 Johns. 321. It is a tuir participa- tion and a reasonable use by each that the law seeks to protect. ''mamsf- i^iagE:s£;--cur^!s- ™ 23 THE C.AUACTEU.STICS OF PEUSONM. PUOPKKTV. Such interruptioa in the flow "as is necessary and unavoidable J; 111 ,lPn St !!; Ilartzall v. Sill, i= I'a- St. 24!> ■ ";, 4\Ht, 40 .o hold .1... .here can be „o dimi„ut,o„ : ;, ve li no ;bs.n,c.lon or lm„eai,™..t whatsoever by a :^:;;::,o,rla„rin.W.e.wa.er»ln^^ X^-tr-^rrs'Ll. .o aL Mnllfea.., 3 C»'"-. f ■ "' '- ,. wakbon, 44 N. H. rrr:* '-enio;.:^:; «. .be co,„„,'o.r n.,,. ca„ Ceoran. „o " wr'tbinU the conr. erre.l aUo in declining to instrnc. the . L,Ur,es reouest tlr-t in Jctermining tbc q.iesl.on o£ proper ..e of .bat wb.cb „ a '^ ^ . ' f . ;, j', „, „ ,„e gen- evidence of ,be ,ac,. consen of al^p. r Ues ^^ ^^^^^.^^^ ^ eral convenience of sncb nse. ■^"•' «= / ^^^^ ,„ „„, °"'' r ' rof' : «;ri:; .is'-orfand c„„c,n,ive .bat r,d bradS':::,, be;,; e3.ab,i.ed by .be P---7: , thin" which was not so. U , PUOPEKTY. ly and unavoidable 11 privilee;- above" ler V. Ilowland, 7 cch. 353; Hetrich , 13 Pa. St. 248; iss V. Kennedy, -P in Tyler v. Wilkin- n be no diminution it whatsoever, by a ilows, would be to le and there must be ;i reasonable use by mportant, Palmer v. Lurray, 6 Ind. 324; Waldron, 44 N. H. nd Clinton v. Myers, is, therefore, not a one, or an alteration ;umstances combined n, if in view of all the lity of right in others, ses the injury is not ^ that is incidental to right can demand no :lining to instruct the mining the question of light consider, among untry in similar cases. Co., 13 Gray, 452: lered a reasonable and ight, because it affords es interested to the gen- ie Thurber v. Martin, 2 459. Indeed in most tory and conclusive that the parties concerned, what is reasonable and ely to acquiesce in any- GODDARD V. WIXCIIKLL. 23 These errors render it necessary to order a new trial. Some of the rulings on the admission of evidence sc. m to have been, virv liljcral, but we are not satisfied that they exceeded the KUinds of judicial discretion. The judgment will be reversed, with costs, and a new trial ordered. The other judges concurred. Consult— Clinton v. Myers, 46 N. Y. 511,7 Am. Rep. 373; Cooper V. Williams, 4 Ohio. .153, 22 Am. Dec. 745; Kiidy v. .Simpson, 3 Cal. 2-19, 5SAm. Dec. 40S; Stein v. IJiirden, 29 .Via 127, fi5 .\ni. Dec. 294; Davis V. Getchell, 50 Me. 604, 79 Am. Dec. 63; Moulton v. Water Co., 137 Mass. 163; Snow. V. Parsons, 28 Vt. 459, 67 Am. Dec. 723; Uliss v. Ker.iieuy, 43 111. 67; City of Emporia v. Sodcn, 25 Kan. 5SS. § 5. Qualified property.— In wild animals. See Pierson v. Post, post, § 35. See Manning v. Mitcherson, post, § 36. § 6. Test of real as distinguished from personal prop- erty. (1) Immoy ability. GODDARD V. WINCHELL. [86 Iowa, 71.3 Sitfrauc Court of lo-.ca, i8g2. Granger, J. — The district court found the following facts, with some others not important on this trial: ''That the plaintiff, John Goodard, is, and has been since about 1857, the owner in fee simple of the north half of section No. 3, in township No. 98, range No. 25, in \Vinnel)ago county, Iowa, and was such ow" ;r at the time of the fall of the meteorite hereinafter referred to. (2) That said land was prairie land, and that the grass privilege for the year 1890 was leased to one .lames Elickson. (3) That on the cecond day of May, 1890, an aerolite parsed over northern and northwestern Iowa, and the aerolite, or fragment of the same, in question in this action, weighing, when replevied, and when produced in court on the ^-^.g5s?^iy?pwsr 2_,. Till- lHAIiAl TF.KISTICS Oh' PEUSONAI. I'UOPKUTY. trill of tl.is cause, about sixty-six pounds, fell onto plaintiffs l,,ul described above, and buried itself in the ground to a depth of three feet, and became imbedded therein at a pomt ■d-out twenty rods from the section line on ti.e north. (4) Tliit the day after the aerolite in ciuestion fell it was dug out ot the' ground "with a spade bv one Peter Hoagland, in the pres- ence of the tenant. Elickson; that said Iloagland took it to h>s house and claimed to own same, for the reason that he had found' same and dug it up. (5) That on M.ay 5, 1S90, Iloag- l,nd sold the acrobte in suit to the defendant, II. V. Wnichcll. for $105, and the same was at once taken possession of by said'^ defendant, and that the possession was held by him until same was taken under the writ of replevin herein; that de- fendant knew at the time of his purchase that it was an aerolite, and that it fell on the prairie south ot Iloagland's ,.,„a , (10) I thul the value of said aerolite to be one lunuired and one dollars ($101) as verbally stipulated in open court bv the parties to this action; that the same weighs about sixtv-six pounds, is of a black, smoky color on the outside, showin- tlie effects of heat, and of a lighter and darkish gray color on the inside; that it is an aerolite, and tell Irom the heavens on the second of May, iSyo; and that a member ot Hoacrland's familv saw the aerolite fall, and directed him to it •• " As conclusions of law, the district court found that the •lerolite became a part of the soil on which it fell; that the plaintiff was the owner thereof ; and that the act of Iloagland i„ removing it was wrongful. It is insisted by appellant that the conclusion, of law are erroneous; that the enlightened demands of the tin.es in which we live call for, if not a modi- fication, a liberal construction of the ancient rule "that what- ever is aiVixed to the soil belongs to the soil," or, the more modern statement of the rule, that "a permanent annexation to the soil of a thing in itself personal makes it a part of the realty." In behalf (^f appellant is invoked a rule alike ancient •uulof undoubted merit, "that of title by occupancy;" and we arc cited to the language of Blackstone, as follows: "Occu- pancy is the taking possession of those things which before bclon-ed to nobody;" and -whatever movables are found upon "the surface of the earth, or in the sea, and are unclaimed bv any owner, and supposed to l^e abandoned by the last pro- k , I'UOPKItTY, GonnARD V. wixciiEi.r,. ell onto plaintiff's I the ground to a therein at a point n t'ue north. (4) 1 it was dug out of Inland, in the pres- jland took it to his cason that he had :ay 5, 1S90, rioag- :, II. V. Winchell, n possession of hy 5 held by him until n herein; that de- se that it was an nth of lioagland's aerolite to be one 7 stipulated in open same weighs about or on the outside, r and darkish gray and fell from the that a member of nd directed him to nirt found that the ich it fell; that the he act of Iloagland d by appellant that lat the enlightened 1 for, if not a modi- :nt rule "that what- ioil," or, the more rmanent annexation akes it a part of the , a rule alike ancient y occupancy;" and as follows: "Occu- tliings which before iiovables are found 1, and are unclaimed jned by the last pro- iirictor. and as such are returned into the common stock and mass of things; and therefore they belong, as in a state of nature, to the iirst occupant or tinder." In determining which of these rules is to govern in this case, it will be well for us to keep in mind the controlling facts giving rise to the different rules; and note, if at all, wherein the facts of this case should distinguish it. The rule sought to be avoided has alone refer- ence to what becomes a part of the soil, and hence belongs to the owner thereof, because attached or adiled thereto. It has no reference whatever to an independent acquisition of title — that is, to an acquisition of property existing independent of other property. The rule invoked has reference only to prop- erty of this independent character, for it speaks of movables "found upon the surface of the earth or in the sea." The tcin, "movables" must not be construed to mean that which can be moved, for, if so, it would include much known to be realty; but it means such things as are not naturally parts of earth or sea, but are on the one or in the other. Animals exist on the earth and in the sea, but they are not, in a proper sense, parts of either. If we look to the natural formation of the earth and sea, it is not dilhcult to understand what is meant by "movables," within the spirit of the- rule cited. To take from the earth what natin-e has placed there in its forma- tion, whether at the creation or through the natural processes of the acquisition and depletion of its particular parts, as we witness it in our daily observations, whether it be the soil proper or some natural deposit, as of mineral or vcgtablc matter, is to take a part of the earth, and not movables. if, irom what we have said, we have in mind the facts giving rise to the rules cited, we may well look to the facts of tliis case to properly distinguish it, • The subject of !thc dis- pute is an aerolite, of about sixty-six pounds weight, that "fell from the heavens" on the land of the plaintiff, and was found three feet below the surface. It came to its position in the earth through natural causes. It was one of nature's deposits, with nothing in its material composition to make it foreign or mmatural to the soil. It was not a movable thing "on tlie earth." It was in the earth, and in a very significant sense immovable — that is, it was only movable as parts of earth arc made movable by the hand of man. Except for the peculiar ^r. Tin: C.IAUACTEIUSTICS OF PERSONAI, PUOl'ERTY. „,,„ncr in .hich it ca.nc, its relation to the soil would be bcvona dispntc. It was in its substance, as -o undr. Und a stone. It was not of a character to be thought ot as nn clain.ed by any owner," and, because "-lainjed '-supposed o be abandoned by the last proprietor," as should be the case under the rule invoked by appellant. Infact.it has none of the characteristics of the property contemplate.! by such a rule We may nroperlv note some of the particular clauns ot appellant. His argument deals with the rules of the common law for acquiring real property, as by escheat, occupancy, pre- scription, forfeiture, and alienation, which it ,s churned we e all the methods known, barring inheritance. We need not Cuestion the correctness of the statement, assummg that it has .efereuce to original acquisition, as distinct frmn acc,u,sit.ons to soil already owned, by accretion or natural causes, i he general rules of the law, by which the owners of r.panan titles L made to lose or gain by the doctrine of accretions, are quite familiar. These rules are not, however, of .^^^^ application to such owners. Through the action of the el - uunts, wind and water, the soil of one luan is taken and deposited in the field of another; and thus all over the coun- trv, we may sav, changes are constantly going on. By these n.Uural causes "the owners of the soil are giving and taking as the wisdom of the controlling forces shall determme. By these operations one may be affected with a substantial gain, and another by a similar loss. These gains are of accretion and the deposit becomes the property of the owner of the sod on which it is made. u j . i A scientist of note has said that from six to seven bundled of these stones fall to our earth annually. If they are, as indicated in argument, departures from -^ ;^'^^^^^ ,.non- the planets of the solar system there is this inteichangc bearing evidence of their material composition, upon what principle of reason or authority can we say that a deposit hus nade shall not be of that class of property that it would be if originally of this planet and in the same situation.? If these excb.anges have been going on through the countless ages of' our planetary system, who shall attempt to determine ^vhat part of the rocks and formations of especial value to the scientist, resting in aad upon the earth, are of meteoric acqui- -,.J»BI«te*!«Wi>»- ROPERTY. GOnDARD V. WIXCHEI.L. 27 c soil would be wo understand, a .ujiht of as '-un- cd, "supposed to lould be the case :t, it has none of ed bv such a rule, ticular claims of OS of the common ;, occupancy, pi'C- it is claimed were :. We need not suming that it has from acciuisitions Liral causes. The •s of riparian titles of accretions, are •ever, of exclusive action of the elc- man is taken and ; all over the coun- )ing on. By these iving and taking as ill determine. By I a substantial gain, ns are of accretion, lie owner of the soil iix to seven hundred ly. If they are, as ther planets, and if e is this interchange, )osition, upon what r that a deposit thus rty that it would be same situation.? If rough the countless attempt to determine especial value to the :e of meteoric acqui- sition, and a part of that class of property designated in argument as "unowned things," to be the property of the fuitunate finder instead of the owner of the soil, if the rule cimti-nded for is to obtain? It is not easy to understand why sKiiies or balls of metallic iron deposited as this was, should hi' iroverned by a different rule than obtains from the deposit ot boulders, stones, and drift upon our prairies by glacier .Ktion; and who would contend that these deposits from float- wj; l)odies of ice belong not to the owner of the soil, but to the finder? Their origin or source may be less mysterious, luit thev, too. arc "telltale messengers" from far off lands, and luivc value for historic and scientific investigation. It is said that the aerolite is without adaptation to the soil, and onlv vakiable for scientific purposes. Nothing in the facts of the case will warrant us in saying that it was not as well juhipted for use by the owner of the soil as any stone, or, as Mppellant is pleased to denominate it, "ball of metallic iron." That it may be of greater value for scientific or other purposes mnv be .admitted, but that fact has little weight in determining wlio should be its owner. We can not say that the owner of the soil is not as interested in, and would not as readily contrib- ute to, the great cause of scientific advancement as the tinder, hy chance or otherwise, of these silent messengers. This aero- lite is of the value of $101, and this fact, if no other, would remove it from uses where other and much less valuable mate- rials would answer an equally good purpose, and place it in the sphere of its greater usefulness. The rule is cited, with cases for its support, that the finder of lost articles, even where they are found on the property, in the luiilding, or with the personal effects of third persons, is the owner thereof against all the world except the true owner. The correctness of the rule may be conceded, but its application to the case at bar is very doubtful. The subject of this contro- versy was never lost or abandoned. Whence it came is not known, but, under the natural law of its government, it became a part of this earth, and, we think, should be treated as such. It is said by appellant that this case is unique ; that no exact precedent can be found; and that the conclusion must be based largely upon new considerations. No similar question has, to our knowledge, been determined in a court of last resort. In 2S THE CHAUACTF.IUSTICS OF I'EUSONAL rilOI'KKTV. the American and En-lish Encyclopedia of Law (vol. 15. p. ib;S)istliefollosvin<,Mau-'t to be the property of the "proprietor of the field," • ' the finder. These references are entitled, of course, to slight, if any, consideration; the information as to them beii- 'o- meagre to indicate the trend of legal thought. Our conchu-ious . - a- !ced with some doubts as to their correctness, but th.y av.v- i.^- s^ much from the application ot known rules of law to proper facts as from the al)sence of defined rules for these particular case: . The interest manifested has induced us to give the case careful thought. Our conclu- sions seem to us nearest analogous to the generally accepted rules of law bearing on kindred questions, and to subserve the ends of substantial justice. The question we have discussed is controlling in the case, and we need not consider others. The judgment of the district court is atfirmed. CoNSULT-Riley v. Boston Water Power Co., 11 Cush. i; Kier v. Peterson, 41 Pa- St. 357; Tripp v. llasceig, 20 Mich. 254; Cockrill v. Downey, 4 Kan. 366; Molt v. Palmer, 1 N. Y.s64; Jolinson v. Barber, 5 Gilm. 425, 50 Am. Dec. 416; Jenkins v. McCurciy, 4S Wis. 62S, 33 Am. Rep 841 • Price v. Malott, 85 Ind. 266; McLean v. Hardin, 3 Jones (Lx.), 204 69 Am. Dec. 740; Mam v. Kendall, in Mass. 297; Beardsly v. Ontario Uk 31 Barb. 634; Hart v. R. Co., 7 Mo. (App.J 446; Goodman v. R. Co., 45 Mo. 33; Emaus v. TurnbuU, 2 Johns. 313, 3 Am. Dec. 427. PIlOriiKTY. THE CIIARACTEUISTICS OF PEUSON'AI, IMtorEKTV, -9 : Law (vol. 15. p. ite is tlv property [Icncc a pedestrian a sionc, is not tlie ;ment for travel.'' f) Alb. Law J. 76, adicals contains an decided in Illinois, lerson's Law Dic- e same references, 1 Alb. Law J. 299. It, callinj^ attention lerolite found by a the > 'proprietor of ■rences are entitled, ic information as to d of legal thought. doubts as to their n the application of om the absence of i interest manifested ught. Our conclu- generally accepted and to subserve the we have discussed consider others, ict court is attirmed. )., II Cush. i; Kier v. Mich. 254; Cockrill v, 4; Jolinson V. Haiber, 5 y, 48 Wis. 62S, 33 Am. , Hardin, 3 Jones (Ex.), 297; Beardsly v. Ontario 46; Goodman v. R. Co., im. Dec. 427. < 7. Test of real as distinguished from personal prop- erty. (2) Duration of time of enjoyment. BREWSTER v. HILL. [i N, II. 350.] Supreme Court of Sciv Hampshire, 18 18. This was an action for trespass in ejectment. At the trial iiL-re under the general issue, May term, iSiS, it appeared in evidence that John Whcelock, Esq., was the owner of the demanded premises on the fifteenth of March, A. D. 1796; that he then leased them to one O. for 9S5 years ; that ( ). entered and died, beciueathing all his "personal estate to" A. P. and wife; and that in November, 1S07, A. P. and wife conveyed tlieir interest to the plaintiff. A verdict was returned for the plaintiff subject to the opinion of the court upon the above evidence. Woodbury, J., delivered the opinion of the court. In this case the sole question is whether the term mentioned in the plaintiff's writ would pass under a devise of "personal estate." The boundaries between real and personal estate are, in cer- tain instances, scarcely distinguishable; and indeed some species of property exist which have been deemed real or personal, ac- cording to the character of the claimants and the purpose for which they claim. Vide authorities cited post; Mills v. Pierce, Rock, Feb., 1S19. But we are not aware of any established principles or prec- edents which would make leases for years anything more than "personal estate." The law in relation to them was settled before the land itself could be conveyed. Bac. Leaf. ; Co. Lift. 4:^6. They were then for short terms and with an exclusive view to aid great land holders in the cultivation of the soil. Hence the lease passed t the lessee no interest in the premises; but was a mere contract for a breach of which a recovery in damages against the lessor was the only remedy. Vaugh. 137, Hayes v. Bickerstaff. 30 THE C.AUACTERISTICS OF rKKSONAL PUOPKUTY. As the custom aUevca a.ul leases for longer t-^^/'^^ comLn, the remedy ot the lessee was by statute extradedn htsvas enabled to protect hims-lf in the occupafon of the land 't t.d;tl^iJ;.-s:^\. .ere chattel. ere stn. attached t^^ the term-whether its continuance was for one or lor a hundred ^r;. Hac. Leas. Livery of sei.in was not necessary to pa. he interest as it was to pass real estate. L.tt., sec. ,9. Ihc e s e m.Ul not sustain a real action, but when ousted was , , X .. Ibis nlVuitiff has been in this instance, to resort t.. obl.ped. as l|"M'l >'"l'" ^,^^,,^^ , ,.,.^,, ^^tion ti-psoass ni eiectn.ent. 3 m- ^- »yy* , be m ntain d against him ; because he was not the owner o ^ndconld plead nontenure. Booth. His nUeres could 1?.!,^! th >u"h at common law no real estate could pass by lie Lee.. B.r, I Hon. Ab. 609. It has always L: hel to that aft^ the decease of the lessee the tenn ■ onced to his executors or administrators and not to In iK-irs,^ r Leon, 3»- ^i^^-"' ^^^^'"•' '• ^°^"'''''"' ' ^' ^^;ir:;:tii^:::;u:ta lien upon the real estate of a debtor .I:ttimeof,,d..entren..^,lea.sf.>^sh.^ ,^.ed ..t . e^.;.^^^^^^^^ :. KJnnedv. In wills, too, as in the V^<^^^^' ^^-^^^,}'Z always pas'sed under the expression "goods and chattels and hsle instances under that of "goods" alone. Shep. r. 97 - Cro E . 3S6 ; 13ordman v. Willis, x D. & E. 597 = »-; "^f ^j Nor tn;cessary that leases should be acknowledged and attested; as deeds must be that convey "lands and tenements. ^1;*;!:; are well aware of a common impression that long terms are "to all imaginable purposes a fee snnplc estate, i, Zs 403; that a power "to sell land" has been held to be dut executed by leasing it for 999 ye- ; CiUey v. Cayford, Hil s ^P. 1S06; that our statute of February 10, 179^ (Sta • 9 Requires all leases for more than seven years to be record- d and that according to Denn v. Barnard, Cow. 597, an ad- ^eise possession by the lessee under a long term, m.ght m tune enable him to claim a fee. *»«ai«(iv **■ atWBje*"*'**'*''^'' PUOPKUTV. rcr terms became ;ute extf .idetl, and pation of the land re still attached to e or for a hundred t necessary to pass tt., sec. 59. The when ousted was stance, to resort to could a real action i not the owner ot interest could he stale could pass by oq. It has always ;he lessee the term ors and not to his Lovelace, Pet. of ;al estate of a debtor for years have been Fleetwood's Case. 5 Atk. 739; Bunder sent case, they have i and chattels," and lone. Shep. T. 97; ;. 597: Bac. Leg. B. J acknowledged and inds and tenements." impression that long e simple estate;" 13 has been held to be ; ; Cilley V. Cayford. ruary 10, 1791 (Stat. ;n years to be record- ■d. Cow. 597, an ad- T term, might in time SI.ATKU V. SAMIM.I'. o' ( )u principle, however, it is impossible to define at what number of years a lease shall become real estate. Its character c ui not be changed bv the length of the term. Nor does our St .lute, or the decisions last cited, appear upon esammation to "cunllict will, the idea that a lease for any number of years is nut, as to the lessee's heirs, anything more than -personal estate. Let judgment be entered on the verdict. CoNsui-T-Chap.nan v. Gray. 15 Mass. 437; E'^ parte Gay,,.; Mass. 4.9; Bisbee V. Hall, 3 Ol^.., 405 ; Prigsley v. Aikin, U N. Y. 478 ; nillingha.n V lenkins, 7 S. .V: M. 479; Lorii.g v. MeLcndy, 11 Ohio, 355- ^ 8. Property changing character. SLATER V. SAMPLE. [71 111. 43".] Supreme Court of Illinois, 1874. Mr. Chief Justice Bueese delivered the opinion of the court. The facts in this case are substantially these : One Singleton purchased a lot in the town of Waverly, in the county of Mor- gan of appellant, on time, at one hundred and fifty dollars, the a.nced price. Singleton took possession of the lot and erected on it a small frame house on pillars, as a residence. In the ■ihscnce of the vendor, who had contributed some money toward the plastering and carpenter work of the house. Singleton sold the house to one Ranz, about the tim.e the purchase money be- came due, and Ranz sold it to one Dennis. Dennis and Ranz n.noved the house to a lot belonging to Dennis, placing it on Inick pillars, sunk in the ground, with the intention of makmg a residence of it for the purpose of sale. A purchaser was found in appellee. Sample, who paid them six hundred dollars and over for the house and lot, and, to fit it for a dwelling, budt an addition to it for a kitchen, attached cj the main buildmg by resting the frame on pieces o£ scantling, 2x4, nailed to the cor- ner posts of the main building. c— 3J TUK CIIAKACTF.RISTICS OK I'EUSONAI. I'llOPEKTV. The ptircliase inonov Iroin Sin-lctuii for the h.t was not. then (U.e, nor lias it ever been paid or demanded, and no leed i.iade by appellant. On appellant's retnrn home, fnulin-r the lot he had contractc.l to sell Sin-leton vaeant, the house havin- been removed, and tru-in.' it to the possession of appellee, he demanded a return ol it chdming the riRht of possession, which bein- refused, appel- lant sued out a writ of replevin for the house which the sher.tl executed bv removinR the brick pillars on which the house ha.l been placed by Ran/, and Dennis, and detachincr the "addition" erected by appellee, and removed it from appellee's lot; but to what place it was taken by the sheriff, or what became of it, the record does not disclose. The question in the case is: Was this house, when moved by Dennis and Ranz to Dennis's lot, and there placed on brick pil- lars sunk in the -round, and to which appellee, after his pur- chase built the addition fixed to the building by nails, and occupied it as his dwelling, personal or real property? If the former, the action of replevin would lie on the authority of O- den V Stock. 34 HI. 522. That case does m.t show the bu.Uhn- WIS fixed to and had" become a part of the soil of another lot after it was re.noved, as in this case. Tt was built on blocks resting on planks, but how it was fastened to the sod, after removal, is not disclosed. In that case also the contract of sale provided that if the vendee should make default in any of the „.,vments, the vendor should have the right to consider the agreement terminated, and to treat the purchaser, his reprcsen- latives or assigns, as tenants at will at a specified rent. Nothmg c'f this appears in this case, nor is it shown that any written con- tract existed for the sale and conveyance of this lot by appellant to' Singleton, nor that it was any part of the bargain that Single- ton was to Innld upon the lot. The proof is, appellant sold the lot to him for one hundred and fifty dollars on one year's tmie at ten per cent. No note taken, no contract providmg for a deed executed, no stipulation as to forfeiture on nonpayment; ■uul from aught that does appear, Singleton can yet perform his contract and demand a deed. He may be able to satisfy a court of equity he has equitable rights, and yet may obtain a title to the lot. fi.J I'UOrEKTV, SI.ATKll V. SAMPLE. 33 ic lot was not then and no -lecd i.iadi t he bad contracted )een removed, and manded a return of injjj refused, appe!- ;c which the sheriff liich tlie house liad iin<; tlie "addition" ipellee's h)t; but to at became of it, the ise, when moved by ])hiced on brick pil- eliee, after liis pur- din<;; by nails, and 1 property? If the the autliority of Ojjj- i)t show the l)uildiny 2 soil of another lot was built on blocks h1 to the soil, after ) the contract of sale efault in any of the :rht to consider the chaser, his rcprcscn- L-citled rent. Nothing that any written con- this lot by appellant : bargain that Single- is, appellant sold the rs on one year's time :ract providing for a ure on nonpayment; n can yet perform his able to satisfy a court may obtain a title to Ihit \vc arc clear in the opinion tliat, if tiii« house, luing placed on pdlars. on appellant's lot, for permanency, for a resi- dence, not to serve a temporary pin'pose. it l>ecame a part of the naltv, and its removal to another lot, and there tlNe- pluL sunk in the ground, It became a part o /'-^ " ' ^^ ^^ Incorporated into the realty and was not the subject of a wr.t o£ replevin. In its transit from one lot to the other it m.ght be ".glided as personalty, but when it became attached to the soil, it lost that character. As to the advances made b'y appellant for plastering and car- pentlr" work, it appears a large part of that has been arrange bv d e services of Mrs. Singleton. But there >s no proof the c '^« were made at Singleton's re,uest, and .t t.ey w. they do not change the nature of the property. In e pntv , per haps, appellant might establish a lien for the amount Lli these views, we must affir. the ^^ ^^^^^^^^ 33 A,n. Rep. ^4- Golden v. C.j^U^STU -B.^;;j;;^ V.W..11S.4I Pa. St. 291, 80 Am. Dec M^, J ^e oec. 770; Lacustrine Me. ..29; Branch v. Morrison, 5 Jones, 16, 69 Am. Uec. ,7 , Co. V. Lake Guauv Co., 82 N. Y. 476. ^ ^*«,,,g»^*»i-iiiUA-tJ«rf^'«*=*«»**- »owE««***^'' . rnornnrY, by the court try'inc: tv of nppellant, the U'l, but as part aiul Aith it, to disturb it, vhcn by means of ,i niiis lot, upon brick rt of that lot, it was 2 8ui>jcct of a writ tiieter responsibility when the act amounts to a trespass vi ct armis, either to property or person. Under the old system of actions, it was no defense, in such cases, that the act occurred ly misadventure, and without the wrongdoer's intending it; I'ut the defendant must have shown such circumstances as would make it appear to the court that the injury done to the plaintiff wa-- inevitable^ and the defendant was not chargeable with any iieuligence; for no man should be excused of a trespass unless it niav be adjudged utterly zvithout his fault. This was so a 3S LIMITATIONS TO OWNERSHIP OF PERSONAL PROPERTY. determined in au old case (Weaver v. Ward, Hob ;34). -^-,' the action was against a soldier who had accKlentally .hot Is comrade while exercising; and in Underwood v. Howson ht.a co6,' the defendant was uncocking his gnn. when it went otf and accidentally wonnded a bystander, and the defendan was hatl aiKl holden liable in trespass. And in Cole v. Fisher, I, Mass. 137, it is said that this decision has never been ques- *'The facts of the present case would, under the former system of procedure, have supported an action of trespass and can not, we think, be distinguished from the cases c. ed n one of them, the party, in uncocking his gun, accidentally d.schage. it and bounded a bystander. Here the defendant accidentally ruck the hammer of his gun against his saddle and the same result ensued. In both cases it was upon the de endants to show that it happened, as the books say, by inevitable accident, .nd without the least fault; and the change that has been intro- duced by the new code in the remedy, has not changed the rules of law as to the liability of the parties. It is enough, hovv- ever. that, under any view of the law, the defendant was clearly liable for this damage. In the case cited from the Massachu- setts Reports, the defendant, after washing his gun went to h.s shop doir, which was about a rod distant from the highway, and disch..rgcd it for the purpose of drying -t; and the plaintiff horse, being at the time harnessed to his chaise and fastened by hi; bridle to the fence on the opposite side of the road was frightened and ran away, and broke the chaise, and the defend- ant was held answerable for the damage, either in trespass or case, according to the other circumstances of the transaction. In Lynch v. Nurdin, i Q. B. 29, which was an action for an injury to a child, committed by the defendant m leaving his horse and cart standing alone in a street, into which some ch.l- dren had got, and, teasing the horse, the cart went over h ;,aintiff and broke his leg, Denman, C. J., before whom tl case was tried, held the defendant liable, and said : "If a man were guilty of negligence in leaving anything dangerous m a •'Ti:;;n;ill report o£ this case is as follows: "The detendant vvas un- cock ng a gun, and the plaintiff was standing to see it; -^••^;'- "A J "f "oiulaed hini/and at the time it was held that the plaint.ft might mam- tain trespass." %*0 I -StK: ■isiP^i 'ROl'ERTY. )h. 134), where Mitally .^liot his , Hewson, Stra. 1 it WL'iit off and defeiulant was Cole V. Fisher, ever been qucs- le former system cspass, and can i cited. In one itally discharged lant accidentally e, and the same he defendants to jvitable accident, jt has been intro- ;hanged the rules is enough, how- ndant was clearly n the Massachu- 5 gun, went to his tm the highway, and the plaintiff's ise, and fastened I of the road, was 2, and the defend- ler in trespass or f the transaction. an action for an nt in leaving his which some chil- irt went over the before whom the 1 said: "If a man g dangerous in a > detendant was un- ee it; i' ».-"'- oH an J plaintift might main- EAUL V. VAN ALSTIXE. o9 ,„cct, and an injury arose, though partly by the conduct of other parties, the sufferer unquestionably had a right to recover. It I gamekeeper, returning home from his duty, were to leave his loaded gun in a playground, and one of the boys should the it off and injure another, it could not be doubted but that the gamekeeper must answer in damages to the injured party." I recollect mvself a case tha. occurred, where a person in riding ,hvou"h the streets of one of our villages with his loaded rifle l.cfore him. King horizontally across his saddle, it accidentally tired and wounded a person sitting in his own door, and no ,l„ul.t seemed to be entertained of the responsibility of the party for the damage that resulted. Tlie judgment is afVirmed. CoNsvi T-CaEtle v. Durvea, 32 Barb. 480, 2 Keyes, 4S0; Cole v. Fisher, H Mass. 297: Bullock v. Babcock, 3 Wend. 371; Chatague v. Bergeron, .,, I ■, \nn 690; Cbiles v. Dr.ake, 2 Mete. 146; Thomas v. Wincbester, ,',N Y 397; Vosburghv. Mock, i Cush. 45,3; Po^^^s v. Harlow, 53 Mich. ",07. SI Am. Rep. 4; Harriman v. R. Co., 45 Ohio St. 11; Jenne V. Sutton, 43 N'- b (L-) ^57, 39 Am. Rep. 578; Moebus v Becker, 46 N. 1. (L.) 41; Lunby v. Hatner, 1 Strobh. iS.s; Bennett v. Lovell, 12 R. I. idO, 34 Am. Rep. 628. § 10. Same-Injuries by wild animals and liabUity of owner. EARL V. VAN ALSTINE. [8 Barb. 630.] Stipreme Court of Nezv Tork, iSjO. This action was commenced in a justi-ce's court. The com- phiint alleged that the defendant was the owner of fifteen hives of bees, which he wrongfully kept in his yard, adjoining the lMil)lic highway; and that the plaintiff's horses, while travclmg along the'highway and passing the place where the bees were kept, were attacked and stung so severely that one of them died and the other was greatly injured, etc. The answer denied the .harge contained in the complaint. Upon the trial, the keeping 01 tiie bees as alleged, and the injury to the horses, were proved, ;,:„1 the plaintiff recovered judgment for $70.25 and costs. 15: 4o LnniAUVN.s to owNERsmr ov i'eusonal propf-RTY. Upon appeal to the county court of Wayne county, this judg- ment was reversed ; and the cause was brou-ht to this jourt by appeal from the judgment of tlie county court. Sei.den, T- This case presents two questions: l. Is any or.e who keeps bce^ liable, at all events, for the injuries they may do? 2. I'Hd the defendant keep tliese bees in an improper mamier or place, so as to render him liable on that account? It is insisted by the plaintiff that wliile the proprietor of animals of a tame or domestic nature {^domitae nat/imc) is liable for injuries done by tliem (aside from trespasses upon the soil) only after notice of some vicious habit or propensity of such animal, that one who keeps animals /.hip, while in rcnu-d to the former only a qualified property can exist; and the distinction is based upon the extent to which ihey can be domesticated or brought under the control and dominion of man, and not at all upon the ferocity of their disposition or their proneness to mischief. For instance, the dog. some species of which are extremely savage and ferocious, is uniformly classed among aWmv^U d: PROPF-RTY, EARL V. VAN AI.STINE. 41 lunty, tliis judj;- : to this jourt by ons : I. Is any the injuries they ;s in an improper that account? lu proprietor of at/irac') is liable es upon the soil) opensity of such rac is responsible and that as bee.-; hat the defendant , upon which no ia\e I'ccn able to principles upon Id liable for their in of the author- f animals by the Joniifac i/atiirac rights of property latter class bein<,' nership, while in ty can exist ; and vhich ihey can be dominion of man, sposition or their i>-, some species of uniformly classed ire, the rabbit, and igh comparatively se that a classifica- quality of animals ponsibilities grow- r would it accord which distinguisli for that purpose. in the books which mi'^ht seem to countenance the idea, the decided cases do not kail to any such conclusion. (!: is unnecessary to enter into any examination of the cases which estalilisli one branch of the proposition contended for, to uit, that in order to make the owner of domestic animals liable ior any violent injury done by them, unless connected with a iropass upon land, it must be averred and proved that the defendant had notice or knowledge of the mischievous nature of tiie animal. This, as a general rule, is settled by a series of decisions which have been entirely uniform from tlie earliest days to the present time. But although in many of these cases, most of which are cases of injuries done by dogs, the words domitac 7icitiirac, or equivalent words, are used to describe the animals, for the mischief done by wliich the owners would not be liable without notice, yet it i^ not alone because they Ijclong tu that class that the exemption arises, but because animals of that class are usually of a harmless disposition. I apprehend that if a person chooses to kf;ep a domestic animal, as a dog, which is naturally savage and dangerous, he does so at his peril, and tliat he would be liable for any injury done by such dog, without evidence that he had ever done mischief before. This position is not without authority to support it, although it does not rest upon any adjudged case. In Judge v. Cox, i Stark. 285, Abbott, J., suggests the question, but expressly reserves his opinion upon it as unnecessary to the decision of that case. But in Hartley v. Harriman, i IJarn. & Aid. 620, which was an action for an injury done to sheep by dogs, the declaration c(jntained a special averment that the dogs were accustomed to worry and bite sheep ; and the court held that this averment was not supported by proof that the dogs were of a ferocious and mischievous disposition. But Lord Ellenborough and Mr. Justice Bayley both said that it would have been suthcient to allege generally that the dogs were of a ferocious nature, and unsafe to be left at large, and that evidence of that fact would support the action. These dicta are so obviously in accordance with common sense and reason, that they will undoubtedly be sustained whenever the question shall arise. It is true that in a case of mjurics done to sheep, our statute makes the owner liable without notice, provided the sheep are killed, but the principle would apply to any other mjnry. f :w. - 1^ 43 LIMITATIONS TO OWXEUSHIP OF PERSONAL rUOPEUTY. But While, as I -have said, the cases which ^^f^^J^^^^ snonsibilities of the owners of domcst.c animals a'e ve.v nm" ous, those which relate to the liability of the p.-opr.etor o w d a;imals are rare. It has been assumed, rath.- han decided, that the latter class are kept at the per. of then owners In Rex v. Huggins, 2 Ld. Raym. 15S3, it .s sa.d. ..There is a difference between things ferae naturae, as l.on , bea s etc., which a man must keep up at his per.l, and beasts thlare ,.;..«./-'-/--. -'^ ^'-'^ ^^-"f the tamenesso the r nature, such as oxen and horses. In the latter case, the owl must have notice; in the former, an action hes agams Z owner without notice." The case in wh.ch h.s was sa.d V s an indictment for murder, but the language here g.ven ,s copied and adopted by Duller, in his Nisi Pr.us 2 Bull. N V I, It will be observed that while these author.t.es speak of a whole class, "things /.r^e naturae," yet the exampleg.ven is that of lions, bears, etc. So in a late case in our own courts. Van Leuven v. Lyke I N 'y :;i6, Judge Jewett, after stating the rule .n respect to dome"st?c animals, says: "But as to animals ferae naturae, u h as lions, tigers, and the like, the person who keeps then^ is liable for any damage they may do, without not.ce, on . Iround that by nature such animals are ferce and dangerous. Here the learned judge, although adopting the same class.- fication, yet states the true ground of the owner's respons.b.l.ty. The substance of the rule as given by him ,s, that one who keeps lions, tigers, or other fierce and dangerous an.mds .s liable at all events for any in ury they may do. The words yle naturae add nothing of any value to the rule, but rather ind to mislead, as they are descriptive of many an.mals that nre not ferocious or dangerous. Pe°L in his work on Evidence, under the head of "Actions Founded in Negligence," has the following: "If one man keep a lion, bear, or any other wild and feroetorcs an.mal, and such animal escape from his confineme.it and do --^h.e to another, the owner is liable to make satisfact.on for the misch ef so done, without further evidence of negligence m h.mi for c -erv person who keeps such noxious and useless animals must keep them at his peril. On the contrary, if a man has a dog, a bull or any other domestic animal such as are usually kept V^ta » i | i nii i a> lwi*a>> aaiMWW"****^ ■ T t'UOl'ERTy. define the re- mals a' a very the proprietor led, rather than peril of their 5S3, it is said: ftitrac, as lions, peril, and beasts the tameness of latter case, the tion lies against :h this was said re here given is •ius. 2 Bull. N. authorities speak lie example given Leuven v. Lyke, 3 rule in respect Is ferae naturae, who keeps then^ lUt notice, on "■ and dangerous.' the same classi- ;r's responsibility. is, that one who i^erous animals, is r do. The words e rule, but rather nany animals that : head of "Actions ng: "If one man ocious animal, and nd do mischief to ion for the mischief gence in him: for '.elcss animals must £ a man has a dog, s are usually kept EARL V. VAN ALSTIXE. 41 nnd are indeed necessary to the existence of man, no action is maintainable without proof of knowledge, etc. ; for without Mich knowledge no negligence or fault is imputable to the defendant." Norris's Peake, 4S6. Three things are worthy of notice in this extract. In the first place, the author men- tions animals that are not only wild but ferocious, and speaks of them as not only noxious but useless. In speaking of domestic animals, he dwells upon their utility and value. And lastly, he makes negligence the foundation of the liability of the owner. Again, Chitty, under the head of "Actions on the Case for Xegiigence," gives the rule as follows: "The owner of domestic or other animals, not naturally inclined to do mischief as dogs, horses, and oxen, is not liable for any injury com- mitted by them to the person or personal property, unless it can be shown that he previously had notice of the animal's mischievous propensity." 2 Chitty's PI. 82. This accurate (.Icmentary writer did not fall into the error of applying the rule to the whole class of animals domitae naturae, but adds the qualification, "not naturally inclined to do mischief." By his arrangement of the subject, too, he confirms the view of Peake, that the liability is based upon negligence. These authorities seem to me to point to the following con- clusions: (i) That one who owns or keeps an animal of any kind becomes liable for any injury the animal may do, only on the ground of some actual or presumed negligence on his part. (3) That it is essential to the proof of negligence, and suffi- cient evidence thereof, that the owner be shown to have had notice of the propensity of the animal to do mischief. (3) That proof that the animal is of a savage and ferocious nature is equivalent to proof of express notice. In such cases, notice is presumed. These views derive some support from the case of May v. Burdett, 9 Q. B. 10 1. That was an action on the case for an injury done to the wife by the bite of a monkey. The declara- tion alleged that the defendant kept the monkey wrongfully, well knowing that it was of a mischievous and ferocious nature, ;ind accustomed to bite, etc., but did not aver that the defend- ;int had been guilty of any negligence. A verdict was found lor the plaintiff; and the defendant moved in arrest of judg- .j^saaBW™- .,4 MM. .ATIONS TO OWNEUSUIP OF PEUSONAl, rROPKUTV. mcnt ontheRVoun.l that, as the action was founded in ncMu:o.s anhnal, ../M ^noMj^c oi .is 1-onensities. is bound to keep it secure at his perd, and that .£ Ho s n^ischief, n,^^i;rr>^rr is pr.sn.n.L The ne,h,ence .s ;lpi.v^ -cl^ an anhnal after notice." The n.ury for u^uch • tion was b,.ou,ht was done by an anin.al clearly Jcrac »-,. -.nd vet it was deemed necessary to aver the m.s- :;t:,s l-^L the ammal, together with knowledge on the :,t of the owner; and the question which ---. «-— ^^-J^ a,orately discussed was, whether the phunt.ff should not h ve gone still further, and inserted an averment of ne,bgence. Having shown, then, as I think, clearly, that the bab.hy does not depend upon the classification of the nn.mal don,g the t^^^ but upon its propensity to do mischief, it reman.s to be o i^l^-red whether bees are animals of so ferocous a d.spos.- Ton that every one who keeps them, under any cncumstances, a. his peril If it is necessary for the plaintiff to aver :r;: t^^l^chievous nature of the animal, nothing of U.e U^'^as done in this case; but if courts are to take jud.cu notice of the nature of things so familiar to n.an as bees, wh.ch n lose they would be justified in doing, then I would observe L; 'ho ever' it mav have been anciently, in modern days the bee has become almost as completely domest.cated as the ok o tltcow. Its habits and its instincts have been stnd.ed and U ro u.h the knowledge thus acquired, it can be control ed and n :^ d .vith nearly as much certainty as any of the domest.c "n mal • and, altlJ.gh it may be proper still to c ass ,t among C A - ■ -'^--' '---^' "-ertheless, be regarded as con.ng "near the dividing line; and, in regard to Us propens.ty to m fc "e 1 apprehend that such a thing as a sertous n^jury to m.sch.et 1 n .^ ^^^^^ ,^^^ occurrmg ^:::^^^^^^ certaimy than injuries arising from the .hlh I have referred, not yet noticed, and that .s that the law ^^- ■ttm^^ Ol'EUTV. KAIU, V. VAN AI.STINE. 45 dcd in nc<,'li- iiitaiiiiti;^' any f noglij^encc. Chief Justice iwvn from an be this: that jivlviigc of its •11, and that if negligence is jury for which clearly ferae aver the inis- iwledge on the ; and was very iff should not of negligence, lat the liability limal doing the t remains to be ;ious a disposi- circunistances, laintiff to aver , nothing of the take judicial 1 as bees, which I would observe iiodern days the cated as the ox 2en studied, and ; controlled and of the domestic o class it among jarded as coming Its propensity to serious injury to e, not occurring arising from the he authorities to at is that the law looks with more favor upon the keeping of animals that are useful to man, than such as are purely noxious and useless. And the keeping of the one. although in some rare instances it iiiav do injury, will he tolerated and encouraged, while there is iioliiing to excuse the keeping of the other. In the case of X'rooman v. Lawyer, 13 Johns. 329, the court say: ''If dam- age l>e done by any domestic animal kept /T'/w/.vi();-r();/rr;//(7/(-<', the owner is not liable to an action without notice." The utility of bees no one will question, and hence there is nothing to call for the application of a very stringent rule to the case, Tpon the whole, therefore, I am clearly of the opinion that the owner of bees is not liable, at all events^ for any accidental injury they may do. The (jucstion is still left, whether the keeping of these bees so near the highway subjects the defendant to a responsibility which would not otherwise rest upon him. I consider this ([uestion as substantially disposed of by the evidence in the case. It appears that bees had been kept in the same situation for some eight or nine years, and no proof was offered of the slightest injury ever having been done by them. On the con- trary, some of the witnes^ses testify that they had lived in the neighborhood, and had been in the habit of passing and repass- ing frequently, with teams and otherwise, without ever having hccn molested. This rebuts the idea of any notice to the defendant, either from the nature of bees, or otherwise, that it would be dangerous to keep them in that situation; and, of course, upon the principles already settled, he could not be held liable. The judgment of the county court must be afHrmed. Judgment affirmed. Consult— Wood v. Chalker, 31 Conn. 121, Si Am. Dec. 175; Loomis V. Terrv, 17 Wend. 496; Drake v. Mount, 33 N. J. (L.) 441 ; Rider v. \Vhite,"65 N. Y. 54 ; Jewett v. Gage, 55 Me. 53S, 93 Am. Dec. 615 ; Oakes V. SpauUiing. 40 Vt. 347, 94 Am. Dec. 404; Congress Spring Co. v. Edgar, 99 U. S. 645; Marble v. Ross, 124 Mass. 44; Laverone v. Mangianti, 41 Cal. 138, 10 Am. Rep. 260; Evans v. McDermott, 49 N. J. (L.) 60 Am. Rep. 603. 46 L.Ml. ATtONS lO C.UNKUSllll- OK ■■EUSONAL VMOVl'MVY. § 11. Same -Injuries by domestic animals and liability of owner. VAN LEUVEN v. LYKE. t>N-Y. SI3-] Court of Appeals of New York, 1848. Van Leuven sued Lykc and Dumond in a justice's court, ami recovered judRment: which was aillrmed by the common pleas on ceriioran, and reversed by the supreme court on error r.Dcnio 127.) The plaintiff brought error to th.s court. 1 he cassis lulhcieVtly statei in the opinion of the court, as delivered by Jewett, C. J. M. Schoonmaker for the plaintiff in error. T. R. Westbrook for the defendants in error. Jewett, C. J—It is alleged in the plaintiffs declaration, .'that on the twenty-seventh day of November, 1844, at, etc the defendants were the owners of a certain sow and p,gs, wh,ch sow and pigs, to wit, on the day and year aforesaid, to w.t, a h place a?o;esaid, bit, damaged, and mutilated and mangled . certain cow and calf of the plaintiff, while the sa.d cow was in the act of calving, so that said cow and calf both d.ed, to he plaintiffs damage $5o.- To which the defendants pleaded the general issue. There was evidence given on the trial suffi- cien"^ to warrant the jury in finding that the plaintiff s cow and calr were destroyed by the defendants' sow and pigs in the man- ner set forth in the declaration, upon the land of the plaintiff, where the sow and pigs were at the time of committing the said iniurv. But there is no allegation in the declaration, or evidence eive^ on the trial, th.^ .wine possess natural propensities which fead them, instinctively, to attack or destroy animals in the con- dition of the plaintiffs cow and calf. Nor is there any allega- tion or evidence that the defendants previously knew, or had notice, that their swine were accustomed to do such or sinrid^ir mischief, or that the swine broke and entered the plaintiff s close, and there committed the mischief complained of. J«e»&v iKM'Ku ry. VAN LEUVEN V. I.YKK. 47 nd liability of ^48. tice's court, ami e common pleas court on error. I this court. The »urt, as delivered C. R. Wcstbrook iff's declaration, , 1844, at, etc., \- and pigs, which ■esaid, to wit, at ted and mangled he said cow was : both died, to the ;f end ants pleaded on the trial suffi- laintiff's cow and [1 pigs in the man- 1 of the plaintiff, >mmitting the said .ration, or evidence propensities which animals in the con- 3 there any allega- isly knew, or had 3o such or similar cred the plaintiff's plained of. It is a well settled principle that in all cases .vherc an action of trespass or case is brougi)t for mischief done to the person or pcisona! property of anotherby animals mansurlac nat/irac, such as horses, oxen, cows, sheep, swine, anil the like, the owner must be shown to have had notice of their viciousncss before he can be charged, because such animals are not by nature tierce f)r dangerous, and such notice must be alleged in the declara- tion ; but as to animals _/lv'rt!(? naturae, such as lions, tigers, and the like, the person who keeps them is liable for any damage they may do, '^vithoiit notice, on the grounil that by nature such animals arc y/crcc and dangerous. 9 IJac. Abr., tit. "Tres- pass,"!, 505; Jenkins V. Turner, i Ld. Raym. 109; Mason V. Keeling, i Ld. Raym. 603; s. c, 12 Modern, 332; Rex v. Iluggins, 2 Ld. Raym. 15S3; i Chitty's PI. [ed. 1S13] 69, 79; Vrooman v. Lawyer, 13 Johns. 339; Hinckley v. Emerson, 4 Cow. 351. Hut this rule does not apply where the mischief is done by such animals while committing a trespass upon the close of another. The common law holds a man answerable not only for his own trespass, but also for that of his domestic animals ; and as it is the natural and notorious propensity of many of sucl' animals, such as horses, oxen, sheep, swine, and the like, to rw-^. the owner is bound at his peril to confine them on his own land; and if they escape and commit a trespass on the lands of another, unless through defect of fences which the latter ought to repair, the owner is liable to an action of trespass quare clausttm f regit, though he had no notice, in fact, of such propensity. 3 Bla. Comm. 211; Chitty's PI. 70. And where the owner of such animals does not confine them on his own land, and they escape and commit a trespass on the lands of another, without the fault of the latter, the law deems the owner himself a trespasser for having permitted his animals to break into the inclosure of the former under such circumstances. And in declaring against the defendant in an action for such trespass, it is competent for the plaintiff to allege the breaking and entering his close by such animals of the defendant, and there committing particular mischief or injury to the person or property of the plaintiff; and, upon proof of the allegation, to recover as well for the damage for the unlawful entry as for the other injuries so alleged, by way of aggravation of the trespass, without alleging !''■. 4S ...Nin AT.OSS TO ..WNKUS.I.r ..K .'UUSONAI. i-noi-ERTV. or nn.vin,r that the .l.fnulant Inul M-.l.a- that Lis animals IkuI Jn acc,.:t..nu-a to U P"lUil was held to be trespassers, and eir docj, althougli or notice of tlie ijnry. In Animus i for the dcfend- laintiff. and there c ground that the )n his own land, [ the plaintiff, he it was not alleged propensity of his Dolph V. Ferris. s, before a justice leclaration having :ase must be con- the most favorable ience would have of the defendant, •ed into the inclos- ding on the grass he died by reason be clear from the n declared against lie plaintiff, and the ly growing with h nd might also hax h having killed o. is bull. Hut in the case under consideration liiire is no allegation charging the defenilants' swlnc with doing any act for wliich the law iiolds tiie defendants accoimtable to the plaintiff with- out alleging ani' proving a scicidtr. Ili'd the plaintiff stated in his declaration such ground of liability, or charged that the swine broke and entered his close and there committed the inis- tliief complained (jf, and .sustained lii» tieclaration by evidence, I am of opinion that he would have been entitled to recover all the damages thus sustained; but as lie has not stated in his declaration either ground of liability, the defendants ought not ti) be deemed to have waived the objection by not making it, s-pecilically, before the justice. I think the judgment .should be allirmed. Judgment atlirmed. Consult — Bush v, Rrainard, i Cow. 78, iji Am. Dec. 513; .Scott v. (irover, 56 Vt. 499, 48 .\m. Rep. S14; Chiiiiot v. Larson, 43 Wis. 536, 28 .\m. Kep. 5^)7; Canetox v. Crenshaw, i\ .Mo. J99; Knight v. Aliert, 6 Pa. .St. .^72, 47 \n\. Dec. 478; Gorman v. K. Co., 20 .Mo. 442, 7: .\iri. Dec. 220; Hale v. \an Dever, 67 Mo. 732. § 12. Same— The police power of the state. LAWTON V. STEELE. [152 U. S. ij4.] Sufremc Court oj" the United States, ^Sgj. In error to the supreme court of the state of New York, to review a judgment of that court, affirming a judgment of the general term, and ordering judgment absolute for the defeiul- ;nil, William N. Steele, in an action brought by George W , Lavvton et al., plaintiffs, for the conversion of certain fish nets, the property of the plaintiffs, taken and destroyed by the defend. uii '' 'e. 119N. Y. 326. Affirmed. wr. Justice Hkown: This was a ction at law instituted in the supreme court for the connty of Jefferson by the plaintiffs in error against the defendant in error, together with Edward L. Sargent and Rich- -SS¥ta)ifi«;.8«|K. Li 50 T.1MITAT10XS TO owNKRSinP or PEKSOxAr. ruorEUTV. A r Shermnn for the conversion of fifteen hoop and fyke ard h. Sherman tor t. Defendants Steele and Sai- nets of the ^^f^J^^^^^^; .^dant She„nan pleaded ^:^ '^ :le state of New York, with power to g.e d.rec.K.ns " " me and fish protectors with regard to the enfovce.n^t ot he^L'.me law; that defendant Steele was a game and fish pi 0- tordu appointed hv the governor of the state of New Yol -dth' the nets .ued for were taken possession of b Steele IS such came and fish protector, upon the grou, d ■rul thereby became a public nuisance. The cts were undisputed. The nets were the property o the pHimiHs and were laken away by the defendant Steele and the plainutts^ the time of the taking most of the nets were m 1 Xs of n. Black River Bay, being used for fishing pui- o. nd the residue were upon the shore of that bay having ::: U been used for the same purpose. The P^-^tiHs we. fishermen and the defendant Steele was a state game and t,M no el" The taking and destruction of the nets were clanncd to he been justifiabi: under the statutes of the state relating to have been ju plaintiffs claimed there to the protection ot ^'•\''^'^ ^"^' ^ ..^^ if they constituted WIS no -iustification under the statu.es, . la 11 u ey was uu u unconstitutional. $166.09 costs. u J ^^^j ^ further appeal was reversed and a u ^^^^^^ ^ . -lUoweci to the court of appeals. Un appeal ure-ds the cdev of the general term granting a new t i.al xv s Eed and" judgment absolute ordered for the defendant,] . V^atstiii'siS.iVJ ^ . ^~ i^am .r, rRorF.iiTY. LAWTON V. STKEI.E. cn hoop and fyke Its Steele and Sai- t Shei aian pleaded imissionersof Fiab- r to give directions he enforcem'^nt of game and fish pro- the state of New :n possession of b / , upon the groui d of the state in vie- of fish and game ere the property of efendant Steele and of the nets were in ised for fishing pur- of that bay, having The plaintiffs \''crc state game and li-h the nets were claimed of the state relating untiffs claimed there id if they constituted ere unconstitutional. iissioner. Defendant unty Fish and Game fendar/.s to be liable cited, or directed the ^ rendered subject to aintiffs against defend- vor of defendants Sar- lew trial was denied j ;or $2i6 damages and ral term this judgment I and a furth( r appeal ppeal to the court of anting a new trial wasj ed for the defendant. 119 X. Y. 336. Plaintiffs thereupon sued out a writ of error from this court. This case involves the constitutionality of an act of the legis- iMture of the state of New York, known as chapter 5^1, Laws <.)f New York of iSSo, as amended by chapter 317, Laws of New York of 1SS3, entitled "An Act for the Appointment of Game and Fish Protectors." Py a subsequent act, enacted in 18S6: "Section i. No person shall at any time kill or take from tlie waters of Henderson Bay or Lake Ontario, within one mile from the shore between the most westerly point of Pillar Point and the boundary line between the counties of Jefferson and Oswego * * * any fish of any kind by any device or means whatever otherwise than by hook and line or rod held in hand. But this section shall not apply to or prohibit the catch- ing of minnows for bait, providing the person using nets for that purpose shall not set them and shall throw back any trout, bass, or any other game fish taken, and keep only chubs, dace, suckers, or shiners. "Sec. 2. Any person violating any of the provisions of this act shall be guilty of a misdemeanor, and liable to a penalty of $50 for each offense." By the act of iSSo, as amended by the act of 1SS3: "Sec. 3. Any net, pound, or other means or device for tak- ing or capturing fish or whereby they m.y be taken or captured, set, put, floated, had, found, or maintained, in or upon any of the waters of this state, or upon the shores of or islands in any of the waters of this state, in violation of any existing or here- after enacted statutes or laws for the protection of fish is hereby declared to be and is a public nuisance, and maybe abatea ind summarily destroyed by any person, and it shall be the duty of each and every protector aforesaid and of every game constable to seize and remove and forthwith destro^, the same • * • and no action for damages shall lie or be maintained against any person for or on account of any such seizure and destruc- tion." This last section was alleged to be unconstitutional and void for three reasons: First, as depriving the citizen of property without due process of law; second, as being in restraint of tlie liberty of the citizen; third, as being an interference with 5. ,,,M1TAT10N8 TO OW^E-SH.P OF PERSONAL PPOPEUTV. Tl-,P trill court Tucd the first of the noovc i^ i PU^ITk"; X »n.Hhc o.,Krs a,,insu.,c., and i.Jgm=.>tsv» ihcKLpon entered in favor of the pla.nt.fts. _ The eonslitntionality of the section in qtiest.on was, ho^^e^e,, s„I.^nedhyt general term and by the conrt of appeals npoa :,;: grold of it^leing a la.vfnl e.ereise of the pol.ee po.e, et '"Vhe'e^tent and limits of what is known ns the police po.ver has Wn rfn,itf„l snhjee. of disenssion h, ^^^^^^Z^ l:rlnd^oi•s..,^hedestr„e.ion„raha«.^^^^^^^^^^^ nrocecdines, of whatever may be regaiciea as, i r^^rth! newer it has been held that the state may orde, the Lnde. this poue otherwise endanger- of wooden bu.ldmss m cities , S interments in buri;.l ntlu-r me-uis of public conveyance, and of inteiments other "^'-'":^ " P ^^,^ ^f objectionable trades in certain local- s'" the r^^l-7 v-^iniion of children; the con.nemont n the insane or those afflicted with contagions diseases; tbc :rn;L^::o:on..ha..^^^^^^^^^^^^^ but what measures aie necessaiy lor i • f.rPst. Barbierv. Connolly, 113 U. S. 27; Kidd v. l eai " ? S U S I To justify the public state in thus mterpos- son, 12S U. b. I. i J ^^^^^ J,,,,, ;i;!.';:,::r !:< CHle'^eLali;, as distinguished fro,., ;Sme . rte P"-TOse. and no. nndnly oppressive npontn |; vMuaTs. The legislature may not, under the gnrse of pro.cc. i> UOPEUTY. LAWTON V. STEELE. 53 United 3tatc<:. propositions in 1 judgment was was, however, ,f appeals upon police power of 16 police power appellate couvls irsally conceded ety, health, and ;nt, by summary public nuisance. ;e may order the ;rwise endanger- uch as are in tlic ;ased cattle ; tlic the prohibition of railways and rments in buri;il in certain local- the confinement )ns diseases; t!ie mkards • the sup- of ill fame; the .-here intoxicatin;4 2 state may intcr- , and in this pn- in the legislatiue he public require, )rotection of such 27; Kidd V. Pear- e in thus interpos must appear, fii>t, distinguished from rference; and, sec- ry for the accom- )pressive upon indi- e guise of protect- ing the public interests, arbitrarily interfere with private busi- ness or impose unusual and unnecessary restrictions upon lawful occupations. In other words, its determination as to what is a proper exorcise of its police power is not final or conclusive, luit is subject to the supervision of the courts. Thus an act rcciuiring the master of a vessci arriving from a foreign port to report the name, birtliplace, and occupation of every passenger and the owner of such vessel to give a bond for every passenger so reported, conditioned to indemn-fy the state agiiiiist any expense for the support of the persons named for four years thereafter, was held by this court to be indefensible as an exer- • cisc ot the police power and to be void as interfering with the rijjht of congress to regulate commerce with foreign nations. Henderson v. \Vickham, 92 U. S. 259. A similar statute of California, requiring a bond for certain classes of passengers described, among which were "lewd and debauched women" was also held to show very clearly that the purpose was to extort money from a large class of passengers, or to prevent their immigration to California altogether, and was held to invade the right of congress. Chy Lung v. Freeman, 92 U. S. 275. So in Hannibal & St. Joe R. Co. v. Husen, 95 U. S. 465, a statute of Missouri which prohibited the driving of Texas, Mexican, or Indian cattle into the state between certain dates in each year was held to be in conflict with the commerce clause of the constitution, and not a legitimate exercise of the police powers of the state, though it was admitted that the state might for its self-protection prevent persons or animals having contagious diseases from entering its territory. In Rockwell v. Nearing, 35 N. Y. 302, an act of the legislature of New York which authorized the seizure and sale without judicial process, of all animals found trespassing within private inclosures v, as held to be obnoxious to the constitutional provision that no per- son should be deprived of his property without due process of huv. See, also, Austin v. Murray, 16 Pick. 121; VVatertown V. Mayo, 109 Mass. 315, 12 Am. Rep. 694; Butchers' Benev. Association v. Crescent City L. S. L. & S. H. Co. ("Slaugh- ter House Cases"), 83 U. S. 16 Wall. 36; Re Cheesebrough, 7SN. Y. 232; Brown v. Perkins, 2 Gray, 89. In all these cases the acts were held to be invalid as involving an unneces- sary invasion of the rights of property and a practical inhibition 5t UM,TAT,0., TO O^VNBnS,™ O. PEKSO.A.. V.O.K.T,- „, ccr.ain occupations W-mless in >hc„.c,vcs anJ wHc. mis.-. „nJ laws limiting the season ""I"' ;^^;* prescribing rTit:itr;:.-.«si,....ca^^^^ -rt'',r;;:::;'i,n::"eiarar.reL.e,,a,iarig,,t.o ?r;.:V,sLriesl C,,es.,pea.e Ba, V, ™^^^ to take or captnrc oysters u th a »°°P " | . ,^i^ .u. penalty of for.ei.nre "P- '^^ - -' ^^^^ ,„„r„r,ion o. The avowe,! ob^e. o '^'^^^^^..^U in ta, ^ ^^^^ ^^^^ scribed by statute .t .as -^ ^.y th^ comf ^^^^ ^^ ^^„ The takmg and selgo-t ^^^^ ,^^,^.„,,j,„ ,f ^he privi- r" ""-X bv d sCtion consequent upon the unrestrained lege or right by ^^^/■^'']^' ^ ^^ i^j^Hous to the com- ^^" • "1 ^:^ e iUs :^;^^he authorii of the legislature of talLg fish a,^ game ^ ^;;^--- ^ ^^ laws are and merchandise. For tins puip exercised f ^ Thp nower to enact such laws has long oeen c. c enacted. Ihepowe roc ... ought not now to be and so beneficially for the public that it ought called into question." Co^ - Chapin 5 1 'c^. 9^^_^^^^^ ,, Dec. 3S6; McCready v. Virginia, 94 I- • S^ 39 , Welsh, 9 Pick. 92; Com. v. Essex Co., 13 C^iay, .4 - OrERTY. LAWTOX V. STEELE. :5D 1 which might :rests. r, has always police power, ■ds and wild id prescribing rht have been 1 V. Maryland. had a right to ng it unlawful -,d to inflict the in this pursuit. ! destruction of in taking them. of the common of guarding it imsoever it may rfciture existed, iting trade under 8 N. Y. 472, a ed certain legis- ng them to make sh. In State v. :h was an indict- at of season prc- 'At common law ; common to all. and game at cer- :tion of the privi- n the unrestrained uious to the coni- of the legislature time and manner is articles of food id game laws are :)ng been exercised ht not now to be ?ick. 199, i<^ Am. , 391; Vinton v. Gray, 24S ; Phelps^ V. Racey, 60 N. Y. 10, 19 Am. Rep. 140; Ilolyoke Water Tower Co. v. Lyman, S2 U. S. 15 Wall. 500; fientile v. State, 2() Ind. 409; State v. Lewis (Ind.), 20 L. R. A. 52. As the waters referred to in the act are unquestionably within the jurisdiction of the state of New York, there can be no valid objection to a law egulating the manner in which fish- ing in these waters shall be carried on. Hooker v. Cumniings, :o Johns. 91, 11 Am. Dec. 249. The duty of preserving the fisheries of a state from extinction by ])rohibiting exhaustive methods ot fishing or the use of such destructive instruments as are likely to result in the extermination of the young as well as the mature fish is as clear as its power to secure to its citizens as far as possible a supply of any other wholesome food. The main and only real difficulty connected with the act in ([ucstion is in its declaration that any net, etc., maintained in violation of any law for the protection of fisheries is to be treated ;\s a public nuisance "and may be abated and summarily iles- troyed by any person, and it shall be tlie duty of each and everv protector aforesaid and every game constable to seize, remove, and forthwith destroy the same." Tiie legislature, however, undoubtedly possessed the power, not only to prohibit fishing by nets in these waters, but to make it a criminal offense, and to take such measures as were reasonable .and necessary to prevent such offenses in the future. It certainly could not do this more effectually than by destroying the means of the offense. If the nets were being used in a manner detrimental to the interests of the public, we think it was within the power of the legislature to declare them to be nuisances and to authorize the officers of the state to abate them. Hart v. Albany, 9 Wend. 571, 24 Am. Dec. 165; Meeker v. Van Rensselaer, 15 Wend. 397. An act of the legislature which has for its object the preservation of the public interests against the illegal depredations of private indi- viduals ought to be sustained unless it is plainly violative of the constitution or subversive of private rights. In this case there can he no doubt of the right of the legislature to authorize judicial proceedings to be taken for the condemnation of the nets in (piestion, and their sale or destruction by process of law. Con- ;,Mess has assumed this power in a large number of cases, bv authorizing the condemnation of property which has been made n:^e of for the purpose of defrauding the revenue. Examples 56 L.M.TAT.ONS TO OWSKUSUU. OK .>KUSONAK PROI-EUTV. Of this are ve.sds ilk-ally re,/,stcrcd or owned or emrloyc.l i„ s,m,.n.rmj, or other illegal trallk; disliller.es or brcwera^ U-alircarncd on or operated, a.ul huildir>,B sta..d,-.fj upon or nea; the boundary line between the United States and another country and u^cd for depots for smn-lin^^ ^^oods In all thes. "L, however, the forfeiture was decreed by jud.cud proceed- i,,. But where the property is of little value and .ts use fo. tl.: illegal purpose is elear. the legislature may dec are it to be , nuisance and subject to summary abatement nstances o, this are the power to kill diseased cattle; to pull dow., houses in the path of condaorations ; destruction of decayed fru.t or nsh or nnvholesome meats, of infected clothu.g of obscene books pictures, or instruments which can be used for dlegal pur- "! c's While the legislature has no right arbitrardy to declare l,itt; be a nuisance which is clearly not -^ ^ goo^. ^^f nust be left to its discretion in that regard, and ,f the object ... bV.ccompli.hed is conducive to the public nrterests .t may oKercise a large liberty of choice in the means employed, ^e^^- w VS O II C. R. Co. V. Hunt, 50 N- J- L. 308; Bla..er ::\^li;;, xo nun, 435; mouses case, .. Cok., 6.; Ston. v. New Yoi'k, .5 NVend. 173 ; American Print Works v. Law.encc. ;i N. J. L. 24S, .3 N- J- L- 590^ 57 A"^- 1^^'^- 42"- It is not easy to draw the line between cases where property Hlcoallv used may be destroyed summarily and where judical '■o'^eedings are necessary for its condemnation. If tne propertv ere of ^nxat value, as. for instance, if it were a vessel employed ,r smu-^gling or other illegal purposes, it would be puttmg a ngTrofs po^er in the hands of a custom officer to permit hnn o sdl or destroy it as a public nuisance and the owner yvould L-c good reason to complain of such act as depriving h.m ot L pn>pevty without due process of law. But when he prope U is o tr fling value and its destruction is necessary to effect the obttof a certain statute, we think it is within U.e power of Th legislature to order its summary abatement For instance the leoislature should prohibit the killing of fish by explosive Ihells and should order the cartridges so used to be destroyed. U would seem like belittling the dignity of the judiciary torequne Teh destruction to be preceded by a solemn condemnation ,n a court of justice. The same remark might be maoe of cards, chips, and dice of u gambling room. lOI'ERTV. I,A\VTO\ V. STKrcr.E. 57 or employed or brcvveric-; ^.M-ig upon or :s and another . In all tliesi.' Jicial proceeil- anil its use for Icclare it to l>c Instances o'. 11 down houses jcayed fruit or f obscene books ■or illegal pur- arily to declare i, a good deal if the object to nterests, it may mployed. New- L. 30S ; Blazier ke, 63 ; Stone v. rks V. Lawrence. :. 420. where property i where judicial , If the property vessel employed aid be putting a ;er to permit hiin he owner would depriving him ot when the property ssary to effect the thin the power ot It. For instance, t fish by explosive 1 to be destroyed, udiciaryto requite condemnation in a e made of cards, The value of the nets in questi'^n wns bn*- '.\^li^ apiece. The cost of condemning one (and tiie use of one is as illegal as the u>e of a dozen) by judicial proceedings would largely exceed the value of the net, and doubtless the stale would in many cases be deterred from executing the law by the expense. Tney could only be removed fr(jm the water with difficulty and were liable to injury in the process of removal. Tlie object of the law is undoubtedly a bt'neficent one antl the state ouglit not to I)e liampered in its enforcement by the application of constitutional l)rovisions which are intended for the protection of substantial rights of property. It is evident that the efficacy of this statute would be very seriously impaired by requiring every net illegally used to be carefully taken from the water, carried before a court or magistrate, notice of the seizure to be given by publication, and regular judicial proceedings to be instituted for its condem- nation. There is not a state in the Union which has not a constitu- tional provision entitling persons charged with crime to a trial i)V jury and yet from time immemorial the practice has been to try persons charged with petty offenses before a police magis- trate who not only passes upon the cjuestion of guilt but metes out the proper punishment. This has never been treated as an infraction of the constitution, though technically a person may in this way be deprived of his liberty without the intervention of a jury. Callan v. Wilson, 127 U. S. 540, and cases cited. So the summary abatement of nuisances with judicial process or proceeding was well known to the common law, long prior to the adoption of the constitution and it has never been supposed that the constitutional provision in question in this case was intended to interfere with the established principles in that regard. Nor is a person whose property is seized under «^he act in question without his legal remedy. If in fact his property has lieen used in violation of the act he has no just reason to com- plain ; if not, he may replevy his nets from the officer seizing them, or, if they have been destroyed, may have his action for their value. In such cases the burden would be upon the de- fendant to prove a justification under the statute. As was said hy the supreme court of New Jersey in a similar case (Ameri- can Print Works v. Lawrence, 21 N. J. L. 24S, 259): "The 5S LIMITATIONS TO OWNEUSIIU' OK PERSONAL PUOl'LUTV. party is not in point of fact deprived of a trial by jury. The evidence necessary to sustain the defense is changed. Even if the party were deprived of a trial by jury the statute is Mot there- fore necessarily unconstitutional." Indeed it is scarcely possible that any actual injustice could be done in the practical adminis- tration of the act. It is said, however, that the nets are not in themselves a nuisance, but are perfectly lawful acts of manufacture and arc ordinarily used for a lawful purpose. This is, however, by no means a conclusive answer. Many articles, such, for instance, as cards, dice, and other articles used for gambling purposes arc perfectly harmless in themselves, but may become nuisances by being put to an illegal use, and in such cases fall within the ban of the law and may be summarily destroyed. It is true that this rule docs not always follow from the illegal use of a harm- less article. A house may not be torn down because it is put to an illegal use, since it may be as readily used for a lawful purpose. Ely v. Niagara County Suprs., 36 N. Y. 297. But where minor articles of personal property are devoted to such use, the fact that they may be used for a lawful purpose would not deprive the legislature of the power to destroy them. The power of the legislature to declare that which is perfectly inno- cent in itself to be unlawful is beyond question. People v. West, 106 N. Y. 393, 60 Am. Rep. 452. And in such cases the legislature may annex to the prohibited act all the incidents of a criminal offense including the destruction of property denounced by it as a public nuisance. In State v. Snover, 42 N. J. L, 341, it was held that a fish warden for a county appointed by the governor had the right under an act of the legislature to enter upon land and destroy a fish basket constructed in violation of the statute together with the materials of which it was composed, so that it might not again be used. It was stated in that case that "after a statute has declared an invasion of a public right to be a nuisance it may be abated by the destruction of the object used to effect it. The person who with actual or constructive notice of the law sets up such nuisance can not sue the officer whose duty it has been made by the statute to execute its provisions." So in Wil- liams v. Blackwall, 2 Hurlst. & C. 33, the right to take posses- sion of or destroy any engine placed or used for catching sal- I'Kurv, PHOVIDENCE HANK V. IIII.I.INGS. 51> jury. The [1. Even if is Mot thcrc- ;ely possible cal iuiminis- hcmsclves a lire ami are vever, by no for instance, purposes are nuisances by ithin the ban is true that ic of a harm- luse it is put for a lawful '. 297. But oted to such irpose would them. The erfectly inno- People V. in such cases the incidents of property d that a fish bad the right and destroy a together with it might not after a statute a nuisance it ed to effect it. ;ice of the law Dse duty it has ," SoinWil- ;o take posses- catching sal- mon in contravention of law was held to extend to all persons ;mil was not limited to conservators or oflicers appointed under till.' act. It is true there are several cases of a contrary purport. Some of these cases, however, maybe explained upon the ground tiiiit the property seized was of considerable value. (leck v. Anderson, 57 Cal. 251, 40 Am. Rep. 115, boats as well as nets; i)iinn V. Burleigh, 62 Me. 24, teams and supplies in lumbering; King V. Haves, So Me. 206, a horse.) In others the court seems to liave taken a more technical view of the law than the neces- sities of the case or an adequate protection of the owner required. I.owry V. Rainwater, 70 Mo. 153, 35 Am. Rep. 420; vState v. Itobbins, 124 Ind. 308; Ridgeway v. West, 60 Ind. 371. Upon the whole we agree that the court of appeals in hold- ing this act to be constitutional, and the judgment of the supreme court is, therefore, affirmed. CoNsi'LT — Stevens v. .State, 2 Ark. 291,35 Am. Dec. 73; Stone v. Mississippi, loi U. S. 814; Butchers, etc., Co. v. Crescent Co., iiiU.S. 741 ; Fertilizing Co. v. Hyde Park, 97 U. S. 659; State v. Yopp, 97 N. C. 477, 2 Am. St. Rep. 305; State v. Ah Chew, 16 Nev. 50, 40 Am. Rep. 488; .Steiner v. Rav, S4 Ala. 93, 5 Am. St. Rep. 332 ; Beer Co. v. Massachusetts, 99 U. S. 25; Eichenlaub v. St. Joseph, 113 Mo. 395; Blair v. Forehand, ii>j Miss. 136, I Am. Rep. 94. ^ § 13. Same— The taxing power of the state. PROVIDENCE BANK v. BILLINGS. [4 Pet. 560.] Supreme Court of the United States, i8jo, Mr. Chief Justice Marshall: • This is a writ of error to a judgment rendered in the highest court for the state of Rhode Island in an action of trespass brought by the plaintiff in error against the defendant. In November, 1791, the legislature of Rhode Island granted a charter of incorporation to certain individuals who had asso- ciated themselves together for the purpose of forming a banking coinpany. They are incorp lated by the name of "The Presi- •r-^iw^i .■'■it'l^-'-.-^riV-" 6o I.1MH A iKiNs TO owM.nsmr of matsoNAi. pkoimcutv. (lent, Directors, and Company of tlic I'rovick-ncc Hank" anil liave Xhv ordinary powers vvliich are supposed to be necessary i'or the nsnal olijeets ol such associations. In iS2i the ie^'islature of Rhode Island passed "an act imposinj^ a dutv on licensed persons and others anil liodies cor- jiorate within the state" in which among other things it i~ enacted (hat there shall he paid for the use of the state by each and every bank within the state, except the Bank of the United States, the sum of fifty cents on each and every thousand dollar- of the capital stock actually paid in." This tax was afterward augmented to one dollar and twenty-five cents. The Providence Hank having determined to resist the pa\- ment of this tax brought an action of trespass against the otlicers by whom a warrant of distress was issued against and served upon the property of the bank in pursuance of the law. The defendants justify the taking set out in the declaration under the act of assembling imposing the tax, to which plea the plaintiffs demur and assign for cause of demurrer that the act is repug- nant to the constitution of the United States, inasmuch as it impairs the obligation of the contract created by their charter of incorporation. Judgment was given by the court of common pleas in favor of the defendants; which judgment was on appeal confirmed by the supreme judicial court of the state. The judgment has been brought before this court by a writ of error. It has been settled that a contract entered into between a state and an individual is as fully protected by the tenth section of the first article of the constitution as a contract between two individuals, and it is not denied that a charter incorporating a bank is a contract. Is this contract impaired by taxing the banks of the state? This quesiion is to be answered by the charter itself. It contains no stipulation promising exemption from taxation. The state, then, has made no express contract which has been impaired by the act of which the plaintiffs complain. No words have been found in the charter which in themselves would justify the opinion that the power of taxation was in the view of either of the parties, and that an exemption of it was intended, though not expressed. The plaintiffs find great diffi- culty in showing that the charter contains a promise, either IIOI'EHTV. ritnVIDENCR BANK V. riM.i.iNr.s. 6i cv l?ank" ami J be necessary iisscd "an act iiul liodics cor- L-r tliin<^s it is c state by cacli k of tlio United lousaiid dollars was afterward » resist the pay- inst the otlicers inst and served the law. The ation under the ea the plaintiffs le act is repug- inasmiich as it by their charter 3urt of common it was on appeal he state. The t by a writ of into between a he tenth section ict between two incorporating a taxing the banks ;r itself. n from taxation. which has been complain. No b in themselves ;ation was in the iption of it was s find great diffi- promise, either (sprcss or implied, not to tax the bank. The elaborate and ingenious argument which has been urged amounts in substance to this: The charter authorizes the bank to emjjloy its capital in hanking transactions for the benefit of the stockholders. It hinds the state to permit these transactions for this ol>ject. Any law arresting directly the operations of the bank would violate this obligation and would come within the ]Mohibition of the touslitution. I5ut as that can not be done circiiitously which may not be done directly, the charter restrains the stale from passing any act which may indirectly destroy the prolits of the hank. A posver to tax the state may uiuiuestionably be carried to such an excess as to take all its prolits and still more than its profits for the use of the state, and conseciuently destroy the institution. Now whatever may be the rule of expediency, the constitutionality of a measure depends not on the degree of its exercise, but on its principle. A power, therefore, which may in effect destroy its charter is inconsistent with it and is impliedly renounced by granting it. Such a power can not be exercised without impairing the obligation of the contract. When pushed to its extreme point or exercised in moderation it is the same power and is hostile to the rights granted by the charter. This is substantially the argument for the bank. The plaintiffs cite and rely on several sentiments expressed on various occasions bv this court in support of these positions. The claim of the Providence Bank is certainly of the first impression. The power of taxing moneyed corporations has l)een frequently exercised and has never before, so far as is known, been resisted. Its novelty, however, furnishes no con- clusive argument against it. That the taxing power is of vital importance ; that it is ossenliid to the existence of government, are truths which it can not be necessary to reaffirm. They are acknowledged and asserted by all. It would seem that the relinquishment of such a power is never to be assumed. We will not say that a state may not relinquish it, that a consideration suiliciently valuable to induce a partial release of it may not exist; but as the whole community is interested in retaining it undiminished, that community has a right to insist that its abandonment ought not to be presumed in a case in which the deliberate purpose of the state to abandon it does not appear. C: MMi I ATioNs TO ownkhsiiip <>i- rKusoNAi, nioriciirv. Tlic plaintiffs would Rive to tliis charter the same coiislriu- tion as if it cuiitaiiiecl a clause exemptiii},' tlu- bank from tax.i- tion on its stock in trade. But can it be supposed that such i clause would not cnlar{,'c its privilc.ues? They euntend that i must he implied, because the power to tax may be so wiekK 1 ;is to defeat the purpose for which the charter was granted. And may not this be said with equal truth of other lef,'islati\r powers: Does it not also apply with ccpial force to eveiv iiicovi)orated company? A company may he incorporated for the purpose of trading in goods as well as trading in money. If tlie policy of the stale should lead to the imposition of a tax on unincorporated companies, could those which might be incor- porated claim an exemption in virtue of a charter winch does not indicate such an intention.' The time may come when a duty may be imposed on manufacturer.s. Would an incor- porated company be exempted from this duty as the mere con- .sequencc of its charter.' The "-real object of an incorporation is to bestow the charter and properties of individuality on a collective and changin- body of men. This capacity is always given to such a body. Any privileges which may exempt it from the burthens common to individuals do not flow necessarily from the charter, but must be expressed in it, or they do not exist. If the power of taxation is inconsistent with the charter because it may be so exerciseC as to destroy the object for which the charter is given, it is equally inconsistent with every other charter, because it is equally capable of working the destruction of the objects for which every other charter is given. If the grant of a power to trade in money to a given amount implies an exemption of the stock in trade from taxation because the tax may absorb all the profits, then the grant of any other thing implies the same exemption ; for that thing may be taxed to an extent which will render it totally unprofitable to the grantee. Land, for example, has in many, perhaps in all the .states, been granted by government since the adoption of the constitu- tion. This grant is a contract, the object of which is that the profits issuing from it shall inure to the benefit of the grantee. Yet the power of taxation may be carried so far as to absorl) these profits. Does this impair the obligation of the contract.' •ROI'KRIV. pnovinENCK n.WK v. nii.i.iNr.s. ^3 same coiistiiu- iink from taxa- icd tliat such i coiitciul tliat ii he so wiolili 1 r was granted. )tlicr le{;islati\r ff)rce to evi'iA incorporated for ding in money, position of a tax 1 might be iiicor- rter wliicii doe^ y come vvlien a r'ould an incor- is the mere con- stow the charter e and ciiangin',' to such a l)oily, urthens common the charter, but vith the charter oy the object for istent with every of working the r charter is given. ) a given amount 1 taxation because ant of any other ing may be taxed iprofitable to the in all the .states, in of the constitu- which is that the fit of the grantee, far as to absorb I of the contract.' riie idea is rejected by all; and the proposition appears so iNlravagant that it is dillicult to admit any resemblance in the i:isc<.. And yet if the proposition for which the plaintiffs cou- tiiuied be true it carries us to this point. 'I'hat proposition is that a power wliich is in itself capable of being exerted to the total destruction of the grant, is inconsistent with the grant; and is. therefore, impliedly reliiuiuished by the grantor though the language of the instrument contains no allusion to the sub- ject. If this lie an abstract truth it may be supposed universal, lint it is not universal and, therefore, its truth can not be admitted in these broad terms in any case. We must look for the exemption in the language of the instrument; and if we do not find it there it would be going very far to insert it by construction. The power of legislation and consequently of taxation oper- ates on all the persons and property belonging to the body t)ulitic. This is an original principle which has its foundation in society itself. It is granted by all for the benefit of all. It resides in government as a part of itself and need not be reserved when property of any description or the right to use it in any manner is granted to individuals or corporate bodies. However absolute the right of an individual may be it is still in the nature of that right that it must bear a portion of the public luirdens, and that portion must be determined by the legislature. Tills vital power may be abused ; but the constitution of the United States was not intended to furnish the corrective for every abuse of power which may be committed by the state governments. The interest, wisdom, antj justice of the repre- sentative body, and its relations with its constituents, furnish the only security where there is no express contract against unjust and excessive taxation, as well as against unwise legisla- tion generally. This p'-iucipic was laid down in the case of M'CuUoch V. State, 4 Wheat. 316, and in 0.sborn v. Bank, y Wheat. 738. Both these cases, we think, proceeded on the admission that an incorporated bank, unless its charter shall express the exemption, is no more exempted from taxation than an unincorporated company would be carrying on the same business. The case of Fletcher v. Peck has been cited ; but ip that case the legislature of Georgia passed an act to annul its grant. 6\ i.lMIlATIOXS TO OWNERSHIP OF rEKSONAL "ROI'EUTV. The case of State of New Jersey v. Wilson, 7 Craiv-h. 161. has been also mentioned ; bnt in that case the sroulatlon exemp- ting the huui from taxation was made in express words. The reasonin;^ of the court in the case of M'CuUoch v. State has l)een applied to this case, but the court itself appears to have provided acjainst this application. Its opinion in that case, as well as in Osborn v. Hank, was founded expressly on the supremacy of the laws of congress and the necesssary con- se(,nence of that supremacy to exempt its instruments employed in the ixccution of its powers from the operation of any inter- ftring power whatever. In leasoning on the argument that the pov.er of taxation wa-^ not confined to the people and property of a state, but might be exercised on every object brought within its jurisdiction, this court admitted the truth of the proposition; and added that the powei was an 'nc' .lent of sovereignty am! was coextensive with that to which it was an incident. All powers, the court said, over which the sovereign pcvver of a state extends are subjects of taxation. The sovereignty of a state extends to everything which exists by its own authority or i< introduced by its permission ; but does it extend to those means which are employed by congress to carry into execution powers conferred on that body by the people of the United States.' We think not. So in the case of Osborn v. Bank, the court said, "the argument" in favor of the right of the state to tax the bank "supposes the corporation to have been originated for the management of an individual concern, to be founded upon con- tract between individuals, having private trade and private profit for its great end and principal object. If these premises were true the conclusion drawn from them would be inevitable. This mere private corporation engaged in its ov.n business would certainly be subject to the taxing power of the state as any individual would be." The rourt was certainly not discussing Hie question whether a tax imposed by a state on a bank chartered by itself in.^jaircd the obligation 01 its contract and these opinions are not conclu- sive as they would be had they been delivered in such a case, but they show that the question was not considered as doubtful, and that inferences drawn -rom general expressions pointed to a different subject can not be coritttly drawn. i^ma itaBBnaft iB AT. "norEUTY. WEST UI\f:K ISKIDGK CO. V. VIS. an, 7 Craiv-h. 164, si'ouh'.tlon excmp- ircss words. of M'CulIoch V. court itself iippears Its opinion in tli;it uinded expressly on the neccsssary coii- itruinents employed ration of any intir- c arsinTienl that the eople and property jject brought within of the proposition ; of sovereignty and s an incident. All ;ign pLVverof a state ereignty of a state Dwn authority or !< tend to those means to execution powers United States.? We le court said, "the ate to tax the bank originated for the e founded upon con- trade and private n drawn from them :orporation engaged ibject to the taxing be." the qiipstion whether cd by itself in.^jaired nions are not conchi- ered in such a case, iisidered as doubtfnl, ;pressions pointed to wn. \Vc have rcUcctcd seriously on this case; are of opinion that the act of the legislature of Rhode Island passed in 1S22 impos- ing a duty on licensed persons and others and bodies corpoiate within the state, does not impair the obligation of the contract created by the charter granted to the plaintiffs in error. It is tiierefore the oi)inion of this court that there is no error in the juilgment of the supreme judicial court for the state of Rhode Island atHrming th judgment of the circuit court in this case, and the same is aiHrmed ; and the cause is remanded to the said snpremo judicial court that its judgment may be finally entered. CoN-siLT— McCulloch V. Maryland, 4 Wheat. 316; Kirtland v. Ilotchki.ss, 100 U. S. 491; People v. Brooklyn, 4 N. Y. 419, 55 Am. Dec. 266; Tavlor v. I'al'-ier. 31 Cal. 240; State v. Newark, 26 N. b L. 519: U"illiam.s v. Cammack, 27 Miss. 209, 61 .\ni. Dec. 508; Hannibal, etc.. R. Co. V. .State IJoard, (.4 Mo. 294; North '^ R. Co. v. Wagner, 49 Mo. 490. Rut tax must lie for a "public" purpose Allen v. Jay, 60 Me. 124,11 .\ni. Hep. 1S5 ; Crowell v. llopkington, 45 N. H. 9; Tyson v. School Di- rectors, 51 Pa. St. 9; Att'y Gen'l v. Eau Claire, 37 Wis. 400; Lowell y. Bos- tun, III Mass. 454, i^ Am. Rep. 39; State v. Osawkee, 14 Kan. 41S, 19 Am. Rep. 97; Loan Association v. Topeka. 20 Wall. 635. § 14. Same— The power of eminent domain. WEST RIVER BRIDGE CO. v. DIX. [6 How. 509.] Si/prciiic Corrt of the L'nitcd States, 1848. Mr. Justice Dan:el. — These cases are brought before us under the twenty-fifth section of the Judiciarv Act in order to test the conformity with the constitution of the United States of certain statutes of Vermont; laws that have been sustained bv ihe supreme court of Vermont, but which it is alleged are rt pugnant to the tenth section of the first article of the constitu- lion, prohibiting the passage of state laws impairing the obliga- tion of contracts. It appears from the records of these causes that m the year 1795 the plaintiffs in error were, by act of the legislature of MM iii» 66 LIMITATIONS TO OWNERSHIP OF PERSONAL PROPERTY. Vermont, created a corporation and vested with the exclusive privilege of erecting a bridge over West River within four miles of its mouth, and with the right of taking tolls for passing the same. The franchise granted this corporation was to continue for one hundred years and the period originally prescribed for its duration has not yet expired. The corpor.ition erected their bridge, have maintained and used it, and enjoyed the franchise granted to them by law until the institution of the proceeding now under review. By the general law of Vermont relating to roads, passed nineteenth November, 1S39 (vide Revised ' aws of Vermont, p. 553), the county courts are authorized upon petition to appoint commissioners to lay out highways within their respec- tive counties, and to assess the damages which may accrue to land holders by the opening of roads, and these courts, upon the reports of the commissioners so appointed are empowered to establish roads within the bounds of their local jurisdiction. A similar power is vested in the supreme court to lay out and establish highways extending through several counties. By an act of the legislature of Vermont passed November 19, 1S39, it is declared ^hat, "whenever there shall be occasion for any new highway in any town or towns, of this state, the supreme and county courts shall have the same power to take any real estate, easement, or franchise of any turnpike or other corporation, when in their judgment the public good requires a public highway, which such courts now have, by the laws of the state, to lay out highways over individual or priv.ite property; and the same power is' granted, and the same rules shall be observed in making ompensation to all such corporations and persons, whose estate, easement, franchise, or rights shall be taken as are now granted, and provided in other cases. "Urder the authority of these statutes and in the modes therein prescribed, a proceeding was instituted in the county court of Windham, upon the petition of Joseph Dix and others, in which, by the judgment of that court, a public road was extended and estab- lished betwen certain tcnnmi, passing over and upon the bridge of the plaintiffs, and converting it into a free, public highway. By the proceedings and judgment just mentioned compensation was assessed and awarded to the plaintiffs for this appropriation of their property anc .or the consequent extinguishment of their iHfifll mm lOl'ERTY. WEST RIVER RRIDGE CO. V. DIX. 67 the exclusive hin four miles )r passing the IS to continue prescribed for 1 erected their I the franchise le proceeding roads, passed of Vermont, in petition to 1 their respec- may accrue to i courts, upon re empowered il jurisdiction. to lay out and nties. sed November all be occasion this state, the power to take rnpike or other rood requires a the laws of the vate property ; rules shall be Drporations and rights shall be cases. "Urdti- rein prescribed, t of Windham, 1 which, by the ided and estab- upon the bridge )ublic highway, d compensation is appropriation ishmeat of their fnmchise. The judgment of the county court having been en- ried l)y certiorari before the supreme court of the state, was i.v the latter tribunal affirmed. ['ending the proceedings at law upon the petition of Dix and others, a bill was presented by the plaintiffs in error to the chancellor of the first judicial circuit of the state of Vermont, praying an inj.unction to those proceedings, so far as they related to the plaintiffs or to the real estate, easement, or franchise belonging to them. This bill having been demurred to, was dismissed by the -'ancellor whose decree was affirmed on appeal to tli( sup me court and a writ of error to the last decision bring- up the case on the second record. In considering the question propounded in these causes, there can be no doubt, nor has it bren doubted in argument on cither side of this contro 1 that the charter of incorporation .granted to the plaintiffs in 1793, with the rights and privileges it declared and implied, formed contract between the plaintiffs and the state of Vermont, which the latter, under liie inhibition ill the tenth sectior of. ih'^ irst article of the constitution could have no power to iii2p;:ii Yet this proposition, though taken as a i)ostulate on both sides, determines nothing as to the real merits of these causes. True, it furnishes a guide to our iiujuirics yet leaves those inquiries still open, in their widest extent, as to the real position of the parties with reference to the state legislation or to the constitution. Following the guide thus furnished us we will proceed to ascertain that position. No state, it is declared, shall pass a law impairing the obligation of contracts; yet with this concession constantly yielded, it can not be justly disputed that in every political sovereign com- munity there inheres necessarily the right and the duty of guard- in,' its own existence and of protecting and promoting the inter- . l^ and welfare of the community at large. This power and tiii- duty are to be exerted not only in the highest act of sov- c'.ignty, and in the external lelations of governments; they n ach and comprehend likewise the interior polity and relations ot social life, which should be regulated with reference to the advantage of the whole society. This power denominated "eminent domain" of the state, is, as its name imports, para- mount to all private right-^ vested under the government, and tliese last are by necessary implication held in subordination to BHi tam mtm m 6S I.IMIl ATIONS TO OWNEKSIIII' OF I'EHSONAL I'ROlMillTV. this power and must yield, in every instance, to its proper exercise. The constitution of the United States, although adopted l.v the soverei<,'n states of this Union, and proclaimed in its own lansi;uage to he the supreme law for their government, can hy no rational interpretation be brought to conflict with this attn- but'? in the states ; there is no express delegation of it by the con- stiti.ion; and it would imply an incredible fatuity in the stales, to asciihe to them the intention to relinquish the power of self- government and self-preservation. A correct view of this mat- ter must demonstrate moreover that the right of eminent domain in government in no wise interferes with the inviola- bdity of contracts; that the most sanctimonious regard for the one is perfectly consistent with the possession and exercise ol the other. Under every established government the tenure of property is derived mediately cr immediately from the sovereign power of the political body, organized in such mode or exerted in sucli way as the community or state may have thought proper to ordain. It can rest on no other foundation, can have no other guarantee. It is owing ^o tliese characteristics only in the original nature of tenure, that appeals can be made to the laws either for the protection or assertion .f the rights of property. Upon any other hypothesis tlie law of property would be simply the law of force. Now it is undeniable that the investment of property in the citizens by the government, whether made for a pecuniary consideration or founded on conditions of civil or political duty, is a contract between the state or the government actnig as its'agent and the grantee ; and both the parties thereto are bound in good faith to fuliill it. But into all contracts, ^vhether made between states and individuals or between indi- viduals only, there enter conditions which arise not out of the literal terms of the contract itself; they are superinduced by the preexisting and higher authority of the laws of nature, or nations, or of the community to which the parties belong; they are always presumed and must be presumed to be known and recognized by all, are binding upon all, and need never, there- fore, be carried into express stipulation, for this could add nothing to their force. Every contract is made in subordina- tion to them, and must yield to their control, as conditions Hhi lOlMiKTV, W.;ST RIVER HRIDGE CO. V. PIX. 69 to its propcr ^h .idoptctl by cd in its own iimcnt, can by with this attri- >f it by the con- y in the states, power of self- nv of this niat- ht of eminent Lh the inviola- regard for the md exercise of re of property jvereign power exerted in snch jnght proper to 1 have no other cs only in tlie ade to the laws ts of property, vould be simply e investment of ;ther made for a ions of civil or the government le parties thereto all contracts, )r between indi- ; not out of the superinduced by tS of nature, of ies belong ; they 1 be known and :ed never, there- this could add le in subordina- 1, as conditions inherent and paramount, whenever a necessity for their cxecu- tidii shall occur. Such a condition is the right of eminent (Imnain. 1 his right does not operate to impair the contract iiilected by it, but recognizes its obligation in the fullest extent, claiming only the fullillment of an essential and inseparable contlition. Thus in claiming the resumption or tiualitication of an investiture, it insists merely on the true nature and character of the right invested. The impairing of contracts inhil)ited by the constitution can scarcely, by the greatest violence of con- struction, be made applicable to the enforcing of the terms or necessary import of a contract ; the language and meaning of the inhibition were designed to embrace proceedings attempting the interpolation of some new term or condition foreign to the original agreement and therefore inconsistent with and violative thereof. It then being clear that the power in cjuestion not being within the purview of the restriction imposed by the tenth section of the first article of the constitution it remains with the st;,tes to the full extent in which it inheres in every sovereign j^overument, to be exercised by them in that degree that shall hv them be deemed coinmensurate with public necessity. So long as they shall steer clear of the single predicament denounced bv the constitution, shall avoid interference with the obligation of contracts, the wisdom, the modes, the policy, che hardship of any exertion of this power are subjects not within the proper cognizance of this court. This is in truth purely a question of power; and conceding the power to reside in the state govern- ment, this concession would seem to close the door upon all further controversy in connection with it. The instances of the exertion of this power, in some mode or other, from the very foundation of civil government, have, been so numerous and familiar that it seems somewhat strange at this day to raise a doubt or question concerning it. In fact, the whole policy of the country relative to roads, wells, bridges, and canals, rests upon this single power under which lands have been always condemned ; and without the exertion of this power, not one of the improvements just mentioned could be constructed. In our country it is believed that the power was never, or at any rate, rarely questioned until the opinion seems to have obtained that thii right of property in a chartered corporation was more sacred and intangible than the same right could possibly be in the per- ^ 70 LIMITATIONS TO OWNERSHIP OF PERSONAL PROPERTV, son of the citizen ; an opinion whicii must be without any grounds to rest upon until it can be demonstrated that the ideal creature is more than a person or the corporeal b.-ing is less. For as a question of the power to appropriate to public uses the property of private persons, resting upon the ordiiiaiy foundations of private right, there would seem to be room neither for doubt nor difficulty. A distmction has been attempted, in argument, between the power of a government to appropriate for public uses property which is corporeal, or may be said to be in being, and the like power in the govern- ment to resume or extinguish a franchise. The distinction thus p.ctempted we regard as a refinement, which has no foundation in reason, and one that, in truth, avoids the true legal or con- stitutional question in these causes ; namely, that of the right in private persons in the use or enjoyment of their private prop- erty, to control and actually to prohibit the power and duty of the government to advance and protect the general good. We are aware of nothing peculiar to a franchise which can class it higher or render it more sacred than other property. A fran- chise is property and nothing more; it is incorporeal property and is so defined by Justice Blackstone, when treating in hi; second volume, chapter 3, page 20, of the "Rights of Things." It is its character of property only which imparts to it value and alone authorizes in individuals a right of action for inva- sions or disturbances of its enjoyment. Vide Bl. Com., vol. Ill, chap. 16, p. 236, as to injuries to this description of private property and the remedies given for redressing thein. A fran- chise, therefore, to erect a bridge, to construct a road, to keep a ferry, and to collect tolls upon them, granted by the authority of the state, we regard as occupying the same position with respect to the permanent power and duty of the state to pru- mote and protect the public good, as does the right of the citi- zen to the possession and enjoyment of his land under his patent or contract \vith the state, and it can no more interpose any obstruction in the way of their just exertion. Such exertion we hold to be not within the inhibition of the constitution and no violation of a contract. The power of a state in the exercise of eminent domain to extinguish immediately a franc. lise it had granted appears never to have been directly brought here tor adjudication and consequently has not been heretofore formally 1 V PROl'KRTV. 30 without any ;d that the ideal I b.'iug is less, to public nsis M the ordinal y ;m to be room tion has been f a government is corporeal, or in the govern- : distinction thus ) no foundation ue legal or con- lat of the right eir private prop- ver and duty of sral good. W'c ich can class it pcrty. A fran- rporeal property treating in hi; jhtsof Things." arts to it value action for inva- Bl. Com., vol. iption of 251'ivate thein. A fran- a road, to keep by the authority le position with he state to pm- •ight of the citi- under his patent re interpose any Mich exertion we stitution and no in the exerci>e franCiiise it had )rought here foi' ■etofore formally WEST RIVER BRIDGE CO. V. 1)IX. 71 propounded from this court; but in England, this power to the luUest extent was recognized in the case of Governor v. Mere- dith, 4 Term Rep. 794, and Lord Kenyon especially in that case founded solely upon this power the entire policy and authority of all the road and canal laws of the kingdom. The several state decisions cited in the argument from 3 I'aige's Ch. 45; from 3 Pick. 361 ; from 17 Conn. 398; from 10 N. H. 20, are accordant with the decision above mentioned, from 4 D. (St E. and entirely supported by it. One of tiiese state decisions, namely, Enfield Toil Bridge Co. v. R. Co., 17 Conn., places the principle asserted in an attitude so striking as seems to render that case worthy of a separate notice. The legislature of Connecticut having previously incorporated the Enfield Bridge Company, inserted in a charter subsequently granted by them to the Hartford and Springfield Railroad Com- pany a provision in these words: "That nothing therein con- tained shall be construed to prejudice or impair any of the rights now vested in the Enfield Bridge Company." This pro- vision, comprehensive as its language may seem to be, was decided by the supreme court of the state as not embracing any exemption of the Bridge Company from the legislative power of eminent domain, with respect to its franchise but to declare this, and this only — that notwithstanding the privilege of con- structing a railroad from Hartford to Springfield in the most direct and feasible route, granted by the latter charter, the fran- chise of the Enfield Bridge Company should remain as invio- late as th- ptoperty of other citizens of the state. These deci- sions susta.u clearly the following positions comprised in this summary gi 'en by Chancellor Walworth (3 Paige, 73) where he says that "notwithstanding the grant. of individuals, the eminent domain, the highest and most exact idea of property, remains in the government or in the aggregate body of the people in their sovereign capacity ; and they have a right to resume the possession of the property in the manner directed liy the constitution and laws of the state whenever the public interest requires it. This right of resumption may be exercised not only when the safety, but also when the interest or even the expediency of the state is concerned." In these positions rontaining no exception with regard to property in a franchise [an exception which we should deem to be without warrant in i 72 I.lMITATinXS TO OWNKUSIIir OF PF-RSOVAI. mOI'KUTY. reason] \vc recognize the true doctrines of the law as apnlica- hlc to the cases before us. In considering^ the question of con- stitutional power — the only question properly presented upon these records — vvc institute no inquiry as to the adetjuacy or inadequacy of the compensation allowed to the plaintiffs in error for the extinj^uishnient of their franchise; nor do we inquire into the conformity between the modes prescribed by the statutes of Vermont and the proceedings which actually were adopted in the execution of those statutes ; these are mat- ters rco-arded liy this court as peculiarly l)elonging to the tri- bunals designated by the state, for the exercise of her legitimate authority and as being without the province assigned to this couct bv the judiciary act. Upon the whole we consider the authority claimed for the state of Vermont and the exertion ox that authority which has occurred under the provisions of the r-tatute above mentioned by the extinguishment of the franchise previously granted the plain- tiffs, as set forth upon the records before us, as presenting no instance of the impairing of a contract, within the meaning of the tenth section of the first article of the constitution and con- sequently no case which is proper for the interposition of this court. The decisions of the supreme court of Vermont are there- fore affirmed. Mr. JrsTicK McLeax : As this is a constitutional question of considerable practical importance, I will state succinctly my general views on the subject. The West River Bridge under the statutes of Vermont was appropriated to public purposes. And it is alleged that the charter under which the bridge was built and possessed under such appropriation was impan-ed. Our inquiry is limited to this point. For whatever injury the proceeding may have done to tile interests of the corporation unless its contract with the state was impaired, we have no jurisdiction of the case. The power in a state to take private property for public use is undoubted. It is an incident of sovereignty, and its exer- cise is often essential to advance the public interests. This act is done under the regulations of the state. If those regulations have not been strictly observed, that is not a matter of inquiry ^■«B n'KUTY. ■WEST IU\'HI! UlillKil': CO, V. Vl\. 73 • as apnlica- stioii of con- scp.tetl upon adequacy or plaintiffs in nor do \\c irescribcd by licli actually u'sc are mat- s' to the tri- icr Icijitiinatc ^ncd to this imed for the ty which has nentioned by ted the plain- 5rescntin<^ no ; meaning of ion and con- sition of this nt are there- )nal question iuccinctly my V^ermont was ged that the isessed under is limited to ay have done act with the case. :y for public , and its exer- ts. This act ie regulations ter of inquiry for this court. The local tribunals have the exclusive power in smli cases. This act by a state has never been held to impair the ol)ii- <,'ation of the contract by which the property appropriated was liclii. The power acts upon the property and not on the con- tract. A state can not ainiul or modify a grant of land fairlv made. But it may take the land for public use. This is done iiy making compensation for the property taken as provided by law. JJut if it be an appropriation of property to public use, it can not be held to impair the obligations of the contract. It is insisted that this was a pretended exercise of the power of the eminent domain with the view of destroying the force and obligation of the plaintiff's charter. This whole proceeding was under a standing law of the state and it was sanctioned on an appeal by the supreme court of the state. A procedure thus authorized by law and sanc- tioned, can not be lightly regarded. It has all the solemnities 'if a sovereign act. But it is said that the franchise of the plaintiff can not be denominated property; that "it included the grant of no property, real or personal; that it lay in grant and not in livery." If the action of the state had been upon the franchise only this objection would be unanswerable. The state can not modify or repeal a charter for a bridge, a turnpike road, or a hank, or any other private charter unless the power to do so has been reserved in the original grant. But no one doubts the power of the state to make a banking house for public use, or any other real or personal property owned by the bank. In this respect a corporation holds property subject to the eminent domain the same as citizens. The great object of an act of incorporation is to enable a body of men to exercise the faculties of an individual. Peculiar privileges are sometimes vested in the body politic with the the view of advancing the convenience and interests of the public. The franchise no more than a grant for land can be annulled In the state. These muniments of right are alike protected. lint the property held under both is held subject to a public necessity to be determined by the state. In either case the property being taken renders valueless the evidence of right. ■ 'iiU-iwii*Si*^'«e^-^ — felBI 74 i.nin ATioNs to owneksiiii- or ituisonal propertv. 13iit this docs not, in the sense of the constitution, impair the contracts. The bridge and the ground connected with it. together with the right of exacting toll, are the elements whuh constitute the value of the bridge. The situation and prodiu- tivencss of the soil constitute the value of land. In both cases i,n estimate is made of the value under prescribed forms and it is paid when the property is taken for public use. And in these cases the evidences of right are incidents to the property. No state could resume a charter under the power of appro- p. iation and carry on the functions of the corporation. A ba>ik charter could not be thus taken and the business of the bank continued for public purposes. Nor could this bridge have been taken by the state and kept up by it as atoll bridge. 'Ih.s could not be called an appropriation of private property to pul- lie purposes. There would be no change in the use except the application of the profits, and this would not bring the act w ithin the power. The power must not only be exercised bona fide by a state but the property, not its product, must be applied to public use. It is argued that if the state may take this bridge, it may transfer it to other individuals under the same or a different charter. This the state can not do. It would in effect be tak- ing the property from A. to convey it to B. The public pur- pose for which the power is exerted must be real not pretended, If in the course of time the property by a change of circumstan- ces .should no longer be required for public use it may be other- wise disposed of. But this is a case not likely to occur. The legalily of the act depends upon the facts and circumstances under which it was done. If the use of land taken by the public for a highway should be abandoned, it would revert to the original proprietor and owner of the fee. It is^'objccted that this bridge, being owned by a corporation and used by the public, does not come within the designation oi private property. All property whether owned by an individual or individuals, a corporation aggregate or sole is within the term. In short, all property not public is private. The use of this bridge, it is contended, is the same as before the act of appropriation. The public use the bridge now as before the act of appropriation. But it was a toll bridge, and by the act it is made free. The use therefore is not the same. n «.■> ^M iiiJ-M i>< O ^> \.:, IMIOPKRTV. "WEST nivEK nniDGE CO. V. nix. 75 tution, impair the onnectfd with it, be elements whiili lation and prodiu- id. In both case>- iribcd forms and it use. And in tlicsi' be propLTty. e power of appin- poration. A bank sincss of tlie bank is bridge have bctii toll bridfje. Tins Ue property to pub- I the use except the not bring the act ly be exercised ioi/a ict, must be appliwl this bridge, it may same or a different iild in effect be tak- 3. The public pui- ; real not pretended, bange of circumstan- use it may be other- kely to occur. The , and circumstances I land taken by the 1, it would revert to | e. aed by a corporation lin the designation oi 'ned by an individual r sole is within the private. is the same as before ; the bridge now as ,'as a toll bridge, and ifore is not the same. '1 he tax assessed on the citizens of the town to keep up and p.iy U>v tlie bridge may be impolitic or imjust, but that is not a mat- in lor the CDiisideratiun of this court. It is supposed, if this l>M\ver is sustained by the state of Vermont, it will be' in the power of the state to seize the evidences of its indelitmeut in the h;iiuls of its citizens or within its jurisdiction, have their value assessed, and by paying the amount extinguisli them. .Such a cave bears no analogy to the one before us. The contract only is acted upon in the case supposed. The obligation to pay tiie money by the state is materially impaired, which brings the case witiiin the constitution. IJut the appropriation of property affects tiie contract or title by which it is held only incidentally. This, it is said, is an extremely te,chnical distinction, and is not siistain.ible, as it enables a state to do indirectly what the con- stitution prohibits. However nice the distinction may seem to l>c, when examined it will be found substantial. The power of appropriation by a state has never lieen held by a judicial tri- hiiiial as impairing the obligations of a contract in the sense of tiie constitution. And this power has been frequently exercised hy ail the states since the adoption of the constitution. In the fifth article of the amendments to the constitution it is declared, "Xor shall private property be taken for public use without just compensation." This refers to the action of the federal govern- ment, but a similar condition is contained in all the state consti- imions. Now the constitution does not prohibit a state from impairing the obligation of a contract unless compensation be made, but the inhibition is absolute. So that if such an act came within the prohibition the act is unconstitutional. But this power has been exercised by the states since the foundation of the government and no one has supposed that it was prohib- ited by that clause in the constitution which inhibits a state "from impairing the obligations of a contract." The only reasonable result therefore to which we can come is that the power in the state is not an independent power and :loes not come within the class of cases prohibited by the consti- tntion. This view gives effect to the constitution by imposing a salu- tary restraint upon legislation affecting contracts but leaves the states free ir. their exercise of the eminent domain which belongs to their sovereignties, is essential for the advancement -m rG LIMll ATIONS TO OWNlCltSllir Ol'- I'ICIlSdNAI. I'Hol'KUlY. of iiitcvnal improvements, niul nets only upon propcrtv within tlieir respective jurisdictions. The powers do not l)eionj,' to tiie same class. That which acts upon contracts and impairs tiieir obligation only is prohibited. Mr. Justice Woodbury delivered a concurrinfr opinion. CoNsei-T-Secombev.R. Co., 23 Wall. ln the doctrine iial may, in the ake and destroy vvn, but of his ommunity may at community, If it be asked, this right of ssity, may be which it is the passages I to establish the adduced there- mittcd, even by ' the plaintiff in that is now too d yet, perhaps, evvhat undefined way, be remark- established doc- AMERICAX PRINT WORKS V. I.AWREXCE. 79 trine, because its origin so far as regards a justification at the common law, is only to be found in the illustrative arguments of the older authorities, and not in any direct adjudication. Its exercise must depend upon the nature and degree of necessity that calls the right into action, and which can not be determined until the necessity is made to appear. The necessity must be immediate, imperative, and in some cases extreme and over- whelming. Mere expediency or utility will not suffice. The doctrine seems to arrange itself under different heads, to which somewhat different rules will be applicable. The conservation of life is one of the occasions which will call it into exercise, of which the necessity of self-preservation is one of the marked and striking instances. Self-preservation is one of the great rules of our being, implanted in us by our Creator, and recognized under this doctrine by the common law. The right to destroy property, or even life, when necessary for self-preservation, is an admitted right. Thus, as an instance frequently referred to, if two men be on one plank insufficient to save both, and one be thrust off and drowned, the homicide is excusable, indeed, justifiable, through unavoidable necessity, upon the great, universal principle of self-preservation, which prompts every man to save his own life in preference to that of another, when one must inevitably perish. Noy's Max., pp. 33, 25. The taking of viands to satisfy urgent hunger, the neces- sity being made to appear, this is no felony or larceny. So, a jail being on fire by casualty, and the prisoners are enabled to get out, this is no escape nor breaking of the prison. 15 Vin. Abr. 534, Necessity. Again, there is a necessity arising out of the act of God or of strangers, as of public enemies; and in regard to this it is said one man may justify committing the private injury for the pub- lic good. Instances are thus put in'an old authority. In time of war a man may justify making fortifications on another's land without license; also, a man may justify pulling down a house on fire for the safety of the neighboring houses ; for these are cases of the common weal. Maleverer v. Spinke, i Dyer, 36b. See, also, the Saltpeter case, 12 Co. 13; Mouse's case. Id. 63, etc. The ground on which this necessity rest's, it is seen, is placed on the principle, not of mere individual necessity, but of the public good. The right may, as in the former class, So I.nilTATIONS TO OWXKnSIIIP OF PERSONAL PROPERTY. be a private, and not a public or official right; it may be one that appertains to individuals, and not to the state. Rut still tlie older authorities to which I have referred, and which are generally cited for the doctrine, place it, in these instances, not on the ground of the individual advantage of the acior, but of the common weal, in order to save the city. The case of pull- ing down a house in time of fire is given as an act done for the public good. That branch of the doctrine to which I now refer is of course to be distinguished from that mere appropriation for public utility under a general state necessity and which comes within the doctrine of the eminent domain. They are both spoken of sometimes as grounded on necessity, and they doubt- less are so. But the latter stands strongly distinguished from the urgent necessity which, for immediate preservation, impera- tively demands immediate action, His case should throw up trenches on his neighbor's land for the protection of a town from an immediate hostile attack, as regards his justification, would certainly stand on a very different footing from one who, under the authority of law, should do the same act in order to guard the town from prospective and merely possible future harm. The one might be a private and unofficial act to protect the community of which he was a part from urgent danger; an act which might be justified under the doctrine of necessity, which, for the common weal, every man may do without an aition. It is not necessary for my purpose to intimate any opinion as to whether in the last case, the -individual would or would not be personally responsible, but certainly the sufferer would come within the constitutional provision. The distinction between the cases when the act was done under the pressure of threaten- ing danger which it was necessary to avert and when taken for the benefit of the public under a grant of power was well put bv Chief Justice Nelson in one of the New York fire cases aris- ing under the statute so frequently referred to. "The one," he savs, "presents a question of responsibility by a citizen acting under the influence of an overruling necessity, solely for the pub- lic good, the decision turning not so much upon the want of merit in the claim for redress, as upon the injustice of making the defendant liable who had thus acted for the benefit of the public. The other the case upon the statute, Is a question «■« iM ROPERTY. t may be one te. But still nd which are instances, not acior, but of e case of puU- ;t done for the 3W refer is of ropriation for whicli comes rhey are both nd they doubt- iguished from ation, impera- )uld throw up )f a town from jication, won id ne who, under order to guard I future harm, to protect the danger; an act cessity, which, t an aition. It y opinion as to r would not be X would come iction between Lue of threaten- when taken for r was well put : fire cases aris- "The one," he \ citizen acting ely for the pub- 3n the want of itice of making benefit of the , Is a question AMERICAN PRINT WORKS V. LAWRENCE. 8l between the sufferer and the city for whose benefit his property has been sacrificed, when the authorities of the city are empow- ered to determine at discretion when and under what circum- stances it shall be thus sacrificed." The Mayor of New York V. Lord, 17 Wend. 290, 291. "I entertain no doubt," says Justice Bronson in the same case, "that in a case of necessity, to prevent the spreading of a fire, magistrates or individuals may destroy private property without subjecting themselves to an action for damages. This is only one of the many cases where the maxim applies, Salus fopuli stipretna lex." Id. 297. Chancellor Kent 1 aces the rule on the same ground, and says, it is lawful to raze houses to the ground in order to prevent the spread of a conflagration, because it is a case of urgent ne- cessity, in which the rights of property must be made subser- vient to the public welfare. 2 Kent's Com. 33S. I have cited these authorities to show that a distinction must be made between the different branches of the law of necessity. The distinction must now be apparent between that overwhelm- ing necessity which will justify one in the destruction of the person and property of another, and when the right is solely for the advantage of the actor, and that necessity which arises from the danger of conflagration in a great city, or other analogous instances, and which rests for its exercise upon the subservience of private rights to the public good. It may well be that a person shall not justify the destruction of another in order to save a stranger. An assault is only justifiable when committed in the defense of one's self, or of those who stand in some near and dear relation to the actor. The necessity of self-preservation, which is for the advantage of the actor, can have no wider foun- dation. The right being a personal one, it is reasonable to suppose that it can be exercised only by the party in danger for his own benefit, or, as would seem tO be a reasonable conclusion, for the safety of husband or wife, parent or child. But can the same rule apply to the efforts which must so frequently be made to save a city from fire, and which rests upon a less restricted principle.' There can certainly be no such limitation of the right as is inconsistent with the reason of the law and the object to be obtained by its exercise. In vain would the call be made on firemen and others to stay the progress of the flames if the 6 S3 LIMITATIONS TO OWNEKSHIP OF PEUSON'AL PKOPEUTY. imminent danger of one's own property could be the only justi- fication of any necessary act of destruction in order to effect that object. If a man's own property must first be in imminen'- peril there would be an end to all ettlcient efforts to stay the progress of conflagration. I have no doubt the rule is otherwise. I think the second special plea is a good plea. The replications I consider to be clearly bad. To both pleas they set up new facts, and in both cases they tender a traverse upon facts not set up or denied by the pleas. Looking, however, at the main point, which it is urged is presented by these repli- cations, that the immediate destruction of the goods was not necessary, such defense is not set up in the pleas. The pleas are in the one, ihat the buildings were lawfully, and in the other, that they were necessarily destroyed in order to stop the progress of conflagration, and that the destruction of the goods was the unavoidable and inevitable consequence, there not being time to remove them. The lawfulnessor the necessity to destroy the buildings should have been denied by a special traverse of some material fact upon which he relied to show that the build- ings were so destroyed, or by setting up in the replication that the goods might have been removed. An issue upon either of these points if decided in favor of the plaintiff would be fatal to the defense. If the pleas are good, which I take them to be, the replications are bad. I am of the opinion that the judgment below should be affirmed. Randolph, J., delivered a concurring opinion. Consult— Hale V.Lawrence, 21 N.J. (L.) 714,47 Am. Dec. 190; Bishop V. Mayor, 7 Ga. 200, 50 Am. Dec. 400; Noyes v. Shepherd, 30 Me. 173, 50 Am. Dec. 625; Harrison v. Wisdom, 7 Heisk. 114; Field v. Des Moines, 30 Ta. C78. 18 Am. 47; Proctor v. Adams, 113 Mass. 376, 18 Am. Rep. 500; Campbell v. Race, 7 Cush 40S; Taylor v. R. Co., 6 Cold. 646, 98 Am. Dec. 474; Brill v. Flagler, ?3 Wend. 333. ;OPERTY, he only justi- ■ to effect that mmuien'- peril Y the progress :\viic. I think To both pleas [ler a traverse ing, however, )y these repli- Dods was not s. The pleas \f, and in the ler to stop the I of the goods licre not being isity to destroy ial traverse of that the build- eplication that ipon either of luld be fatal to e them to be, 3W should be arring opinion. Dec. 190; Bishop d, 30 Me. 173, 50 i V. Des Moines, ',6, 18 Am. Rep. , 6 Cold. 646, 98 LIMirATIONS TO OWNKR.SIUf OT I'K ItSON AT, I'UOl'KUTY. S3 § 18. Same— The claims of creditora. WADDINGIIAM v. LOKER. [44 Mo. 132; 100 Ain. Dec. 260.] Supreme Court of Missouri, i86g. W.\GXEii, J. — Plaintiffs filc.l their petition in the circuit court, the general object and purpose of which was to subject certain stocks held by the widow and daughters of George W. Jencks, to the payment of debts owing to him. The petition set out and described a judgment rendered in favor of Waddiugham against Jencks, while both were living, a revival of that judg- ment, partial payments, and the death of both parties; and pro- ceeded to state, as ground of relief and for equital)le interposi- tion, that the stock in question had been originally purchased with the money and means of Jencks and given to his wife and daughters in fraud of the rights of his creditors. The answer denied that the stock was in any manner or in anv sense or degree, purchased or acquired by the means or credit of Jencks. It sets forth the whole histoiy of the purchase of the stock and the circumstances attending it. It states that when the transfer company was formed, the stock of which is in controvijrsy in this suit, Jencks was anemployeeof the Ohio and Mississippi Railroad Company; that he suggested to the de- fendant Loker, who was an old and intimate friend, that the stock of the company afforded an excellent opportunity for good investment, and that it could not fail to be profitable; that Jencks urged Loker to subscribe on his own account to the stock, and also urged him to take a number of shares for the benefit of the wife and daughters of Jencks, assuring him that in his judgment the only money he would have to pay on account of the subscription for the wife and daughters of Jencks would be the first installment, that the dividends would speedily pay off the residue of the subscription and make the stock good, and refund to Loker the money he was requested to advance. The proposition was to make the last subscription in the name, of "Geo. H. Loker, trustee;" to hold the stock in his own name, as security, iintil he was fully reimbursed, and then to transfer S.f LIMITATION'S TO OWNKKSUIP OP PKHSOVAI. I'UOPEUTY. it to the wife and daughters of Jenclvs. Loker was a banker and possessed of wealtli, and was about usinp; his means for the improvement of his real estate, and lie ref^arded Jencks' propo- sals as visionary, and refused to accede to them. Jcncus was wholly insolvent and supported his family on a salary which he received from the railroad comjiany. At last, owinj^ to the im- portunity of Jencks, and his evident distress at the penniless condition in which his family would be placed in the event of his death, Loker, on account of personal friendship, was induced to take the risk of making a subscription in his own name as trustee, and to advance the cash payment; if the ad- venture was unsuccessful, to sell with as little loss as pos- sible; and if Jencks' anticipations were realized, then after paying himself and ten per cent interest, to transfer the stock to Mrs. Jencks and her daughters. He subscribed accordingly for fifty shares, nominally valued at five thousand dollars, and ad- vanced in cash, as a first payment, two thousand dollars. The stock proved extraordinarily remunerative. The dividends first canceled Loker's stock note for the deferred payment, then reimbursed him his cash installment and interest, and continued so profitable that the company expanded the stock, and what was originally fifty shares grew into five hundred, and still con- tinued to pay handsome dividends. In process of time the two daughters of Jencks were married, and Loker thereupon con- veyed two hundred of the shares to each of the daughters respectively, and the remaining one hundred shares to Mrs. Jencks, the widow. At the hearing in the court below the bill was dismissed as containing no equity and the plaintiffs have appealed. A large mass of evidence was introduced, and after a careful perusal of it, I must say that the transaction as nar- rated in the answer seems to be well sustained by the proofs. It is a rule well known and established that the law will not permit a man to withdraw his property from his creditors. Jus- tice must prevail before generosity. Nor can a man owing debts be permitted to devote his capital, industry, or credit to the accumulation of property to be held by some third person, for his own use or that of his family, to the exclusion of his creditors. In all such cases the law intervenes and goes behind the fraudulent and secret transactions, and subjects the property or trust funds to the payment of just and legal demands. Did llol'ERTV. was a banker means for tlie [encks' propo- JcncKs was lary which he •in<^ to the iin- the penniless 1 the event of D, was induced his own name :; if the ad- ; loss as pos- :d, then after er the stock to ccordingly for jllars, and ad- dollars. The dividends first )ayment, then and continued ick, and what and still con- f time the two lereupon con- the daughters lares to Mrs. below the bill plaintiffs have ced, and after action as nar- by the proofs. ! law will not reditors. Jus- i man owing y, or credit to third person, :lusion of his d goes behind s the property smands. Did wAnnivfiiiAM V. i.oKEn. 85 the evidence show that Jencks merely applied to Lokcr to sub- scribe for the stf)ck and the purpose of having it placed in his name, as a cover for fraud, while Jencks furnished the money to pay for the same, and retained a secret use, there would be no dilliculty in reaching the stock, and making it liable for Jencks' debts. But the testimony of Loker is decisive, and stands uncontradicted — that the stock was not procured eitiier with the money or credit of Jencks. It plaiidy appears that Jencks had no ownership in it; nor had he any control over it, only so far as Loker chose to invest him with that control. Jencks did attend the meetings of the board of directors and attended to the management of the stock ; but it was because he was lawfully authorized thereto by written power of attorney from Loker, and afterward as the duly accredited agent of his daughters. No creditor of Jencks suffered to the amount of a farthing in consequence of the purchase of the stock; for neither his money, credit, nor labor contributed in the slightest degree toward its acquisition. It is not shown that Jencks made any promise to Loker to be responsible or to reimburse him, and it is unquestionably evi- dent that Loker did not act from any notion of Jencks' respon- sibility, for Jencks was a ruined man, hopelessly insolvent, and barely able to make a subsistence for his family. That his views were consulted and to a certain extent deferred to, may be admitted; but they were only advisory and had no binding effect upon Loker. The assumption that he assumed ownership of the stock and had absolute power over and could require Loker to make such disposition of it as he desired is unfounded ; for Loker states emphatically that had Jencks applied to have the stock transferred to him, he could not have complied with the request, and that in the distribution that was made of the stock, Jencks had no hand in the matter, but that it was exclu- sively his own work. The subscription of the stock by Loker was purely voluntary, made from generous motives, as an act of friendship; and had the adventure miscarried or proved un- successful, he would have had no legal recourse on Jencks to make good his loss. So after it was a success and turned out to be an almost unexampled speculation, when we take into ac- count the smallness of the investment, had Loker seen proper to hold on to the stock as his private property, there is nothing S'') I.nil lA IIONS TO OWNKHSHIP OK PEllSONAI, PIlOPKIlTV disclosed wliich woiiltl liave prevented him from doiiiefore the sale; he tlierefore stands in the same sit- uatifin with Xason, neither better nor worse. Judgement for tho plaintiff. Consult— Snow v. Perkins, 60 N. II. 493, 49 Am. Rep. 333; Ruck- man v. Outwater, 2S N. J. (L.) 581; .Smith V. Ellison, 2 Ired. 326, 38 Am, Dec. 697; Lewis v. Jones, 17 Pa. St. 262, 55 Am. Dec. 552; Good- rich V. Jones, 2 Hill, 142; Powell v. Rich, 41 111. 466; Wing v. Gray, 36 Vt. 261. §19. Ice. IIIGGINS V. KUSTERER. [41 Mich. 318.] Sufre7>ic Court of Michigan, i8jg. Campbf.i.l, C. J. — Hifjgins recovered below a judgment against Kustercr for the value of a quantity of ice. Kusterer claims that tr title never passed to Higgins, and that the prop- erty was lawfully acquired by himself from one Lodcr, who cut it on a po'^J belonging to one Coats, and sold it to defendant. The facts are briefly these : The ice in question was formed upon water which had spread over a spot of low ground partly belonging to Henry Coats, forming a basm, the land being dry in summer and the rest of the year overflowed from a small brook leading into it. After the ice formed, and m February, 1S7S, Coats, by a parol bargain, sold all the ice in his part of the biisin to Higgins for fifty cents. The parties at the time stood near by in view of the ice, and the quantity sold was pointed out and the money paid. The ice was then all uncut. About two weeks thereafter John Loder, knowing that Hig- gins had purchased and claimed the ice, and having been w arned thereof by Coats, offeretl Coats five dollars for the ice, wiiich Coats accepted, and Loder cut it and sold it to Kusterer, who had made a previous verbal contract with Loder for it. Higgins was present when the ice was loaded on Kusterer's sleigh, and forbade the loading and removal on the ground that he had purchased it from Coats, who said he had sold it to Loder. )rERTY. th from Blake ^le plaintiff to the same sit- tho plaintiff. ep- 333! Ruck- 2 Ired. 326, 38 lec. 552; Good- ing V. Gray, 36 a judgment c. Kusterer lat the prop- odcr, who cut to defendant, n was formed ground partly ind being dry from a small m February, 11 his part of ; at the time tity sold was len all uncut, ing that Hig- having been rs for the ice, t to Kusterer, Loder for it. jn Kusterer's le ground that Id it to Loder. HI GGINS V. KUSTERER. 93 The only question presented is whether Iliggins was owner of the ice. The case was argued very ably and very fully, and the whole subject of the nature of ice as property was discussed in all its bearings. We do not. however, propose to consider any ques- tion not arising in the case. The record is free from any complications which might arise under other circumstances. There are no conflicting purchas- ers in good faith without notice. Loder and Kusterer had full notice of the claims of Iliggins before they expended any money. The sale to Iliggins was not a sale of such ice as might from time to time be formed on the pond, but of ice which was there already, and which if not cut would disappear with the coming of mild weather and have no further existence. It was not like crops of fruit connected with the soil by roots or trees through which they gained nourishment before maturity. It was only the product of running water, a portion of which became fixed by freezing, and if not removed in that condition would lose its identity by melting. In its frozen condition it drew nothing from the land, and got no more support from it than a log floating on the water would have had. Its only value consisted in its disposable quality as capable of removal from the water while solid, and of storage where it might be kept at its solid state, which could not be preserved without such removal. If left where it was formed it would disappear entirely. While we think there can be no doubt that the original title to ice must be in the possessor of the water where it is formed and while it would pass with that possession, yet it seems absurd to hold that a product which can have no use or value except as it is taken away from the water and which may at any time be removed from the freehold by the moving of the water or lose existence entirely by melting, should be classed as realty instead of personalty when the owner of the freehold chooses to sell it by itself. When once severed, no skill can join it to the realty. It has no more organic connection with the estate than anything else has that floats upon the water. Any breakage may sweep it down the stream and thus cut off the property of the freeholder. It has less permanence than any crop that is raised upon the land, and its detention in any particular spot is 94 SOME I'KcrMAR CLASSES OF I'ERSOXAL PnOI'KUTY. liable to be broken by many accidents. It must be j^athered while fixed in place or not at all and can only be kept in exis- tence by cold weather. In the present case the peculiar situa- tion of the i)ond rendered it likely that the ice could not Hoat awav until nearly destroyed, but it could not be preser cd from the other risks and incidents of its precarious existence. Any storm or shock mi<2;ht in a moment . convert it into floating masses which no in,2;enuity of black-letter metaphysics could annex to the freehold. It does not seem to us that it would be profitable to attempt to determine such a case as the present by applying the incon- sistent, and sometimes almost whimsical, rules that have been devised concering the legal character of crops and emblements. Ice has not been much dealt with as property until very modern times, and no settled body of legal rules has been agreed upon concerning it. So far as the principles of the common law go, thev usually, if not universally, treat nothing movable as realty unless either permanently or organically connected with the land. The tendency of modern authority, especially in regard to fixtures, has been to treat such property according to its pur- poses and uses as far as possible. The ephemeral character of ice renders it incapable of any permanent, beneficial use as part of the soil, and it is only valuable when removed from its original place. Its connection • -if its position in the water can be called a connection — is neither organic nor lasting. Its removal or disappearance can take nothing from the land. It can only be used and sold as personalty and its use only tends to its immediate destruction. We think that it should be dealt with in law according to its uses in fact, and that any sale of ice ready formed, as a distinct commodity, should be held a sale of personalty whether in the water or out of w.iter. We shall not attempt to discuss cases where the bargain includes future uses of land and water and interests in ice not yet frozen. Whether such dealings are to be regarded as leases or licenses or executory sales, may be properly discussed when they occur. We think the sale in the present case was rightly held to be a sale of personalty. The judgment must be affirmed, with costs. * Judgment affirmed. The other justices concurred. ' •KUTY. be jjathered kept in exis- L'ciiliar sittia- ild not Hoat !scr' cd from tcnce. Any into floating ihysics could 2 to attempt ng the incon- it have been emblements, very modern agreed upon mon law go, ible as realty ted with the illy in regard ng to its pur- pable of any md it is only :s connection onnection — is pcarance can 1 and sold as 2 destruction, ording to its , as a distinct ■hether in the the bargain ts in ice not rded as leases scussed when e was rightly lent affirmed. PARKER V. MISE. 95 CoNSLLT-IIickey v. Hazard, 3 Mo. (.\pp.)4So, /">^(,p. 159! f^'^S^ "•• Steinkrai.ss, 131 Mass. 222; Rowell v. Dovle,,i3i Mass. 474; Hrustow v. Rockport fee Co., 77 Me. 100; Wood v. Fowler, :i6 Kan. 682,40 Am. Rep. 330; Woodman v. Pitman, 79 Me. 456, i Am. St. Rep. 342; Washington Ice Co. V. .Shorlall, loi 111. 46, 38 Am. Rep. 255; Marsh.ill v. Peters, 12 How. Pr. 218; Richards v. Gautfret, 145 Mass. 4S6; People's IceCo, v. The Kxcclsior, 44 Mich. 249; Ascherman v. Philip Best Brewery Co., 45 Wis. 262. § 20, Tame animals— The dog. PARKER V. MISE. [27 Ala. 4S0; 62 Am. Dec. 776.] Supreme Court of Alabama., 1855. Action for damages for shooting plaintiff's dog. The opinion states the facts. Rice, J. A dog is a species of property for an injury to which an action at law may be sustained. It is not necessary for the maintenance of an action for shooting a dog, that the dog should be shown to have pecmiiary value. Dodson v. Mock, 4 Dev. & B. L. 146, 33 Am. Dec. 677; Perry v. Phipps, 10 Ire.l. L. 259, 51 Am. Dec. 3S7; State v. Latham, 13 W- 335 "W ight V. Ramscot, i Saund. S4; 2 Bla. Com. 393, 39^; Lent/, v. Stroh, 6 S. & R. 34; King v. Kline, 6 Pa. St. 31S. Wherever there is a wrongful taking of the property of another or a wrongful injury done to it, the law implies that the owner has sustained some damage; and although there be in fact no sensible damage from the loss or injury of the property, or from an actual deprivation of its use, the owner is entitled to recover some damages. And if the trespass on the property was accompanied by circumstances of aggravjition, smart-money or exemplary damages may be assessed by the jury, although the property itself had no pecuniary value. Board v. Head, 3 Dana, 489; Major v. Pulliam, Id. 5S2 ; Wort V. Jcnkings, 14 Johns. 352; 3 Stark. Ev. 1450-51; Bracegirdle v. Orford, 2 Mau. & Sel. 77; Merest v. Harvey, 5 Taunt. 442 ; Dearing v. Moore, 26 Ala. 586. 96 SOME PECULIAR CLASSES OF PERSONAL PROPERTY. Although it may be allowable to prove, as a justification for killing a dog, that the dog was a nuisance to the community and was permitted to go fit large. Dodson v. Mock, 4 Dev. Sc B. L. 146, 32 Am. Dec. 677; King v. Kline, 6 Pa. St. 39S; yet there was no error in sustaining the objection to the. question put by defendant to a witness whether, from his knowledge of said dog, he did or did not consider said dog a nuisance. There is no error and the judgment is afHrmed. Consult — Whe.itley v. Harris, 4 Sneed. 468, 70 Am. Dec. 257; Dodson V. Mock, 4 Dev. & IJ. 146, 32 Am. Dec. 677; Dunlap v. Snyder, 17 llarb. 561; State v. McDiitfie, 34 N. II. 523, 69 Am. Dec. 515; Woolf V. Clialker, 31 Conn. 121,81 Am. Dec. 174; Spray v. Ammerman, 66 111. 309; Uhlein v. Cromack, 109 Mass. 273; Harrington v. Myles, 11 Kan. 480, 15 Am. Rep. 355. § 21. Tame animals— The cat. WHITTINGHAM v. IDESON. [S U. C. L. J. 14.] Upper Canada County Cctirt, 1861. Lonsdale, J. — This is an action broughi. by the plaintiff to recover damages for the loss of his cat, killed by defendant, a gamekeeper. The cat was intentionally killed by the defend- ant, and at the time it was killed was off the premises of the defendant about two hundred yards from his residence. As regards the facts there is no dispute; but it was objected at the trial that a person can have no property in a cat, or, at all events, only a qualified property so long as it remains in his actual pos- session ; and that the cat in question, at the time it was killed, being off the premises of the plaintiff, he had no property in it at that time, and therefore is precluded from recovering damages for its destruction. As regards the latter objection, taking cats, as some authorities hold and as Was argued by the defendant's attorney, to belong to the class of animals ferae naturae^ yet, as they are reclaimed animals, there can be no pretense for saying that, because the cat in question had wan- dered two hundred yards from the plaintiff's house (being in the J. l»EUTy, itification for ! community :k, 4 Dev. & l^a. St. 39S ; the question :novvledge of 5ance. t is affirmed. m. Dec. 257; lap V. Snyder, c. 515; Woo It" Unmerinan, 66 1 V. Mj-les, II e plaintiff to defendant, a r the defend- jmises of the sidence. As jjected at the at all events, is actual pos- it was killed, property in it n recovering :er objection, irgued by the mimals ferae e can be no ion had wan- (being in the Wlinn.NGHAM V. IDESON. 97 habit, as was stated in evidence, of returning home daily), it had, V)y so doing, reverted to its wild state, and thereby divested the plaintiff of any right of property he might otiierwise have had in it; it is therefore unnecessary to consider that objection further. But whether ferae naturae^ or, as otiicr authorities consider them, doniitae naturae, the point to be decided is, whether cats being, as well as dogs and certain other animals, what the law terms, of a base nature, by reason of their not being fit for the food of man, are or are not the subjects of property. For if they arc, there is no doubt that trespass will lie for killing them, since dfi mages may be recovered in tli;it form of action for any injury of a forcible kind done to any- thing whatever in which a man has property. At common law, no animal, with one or two exceptions, such as horses and other beasts of draught, swans, because they are royal birds, hawks, and falcons, "on account of their nobiC and generous nature and courage and as serving ob vitae solatium of princes and noble and generous persons, and as making them fitted for great employments," is the subject of theft, whether domitae naturae ox ferae naturae, unless it be fit for food. But it does not follow from this that there can be no property in animals which are not fit for food, and that they are not the subject of civil remedied. The reason given by Sir William Russell in his Treatise on Crimes and Misdemeanors why such animals have been held not to be the subjects of theft is "that creatures of this kind, for the most part wild in their nature, and not serving when reclaimed for food, but only for pleasure, ought not, however the owner may value them, to be so highly regarded by the law that for their sakes a man should die." This, no doubt, is the true reason why, in a simple state of society, and when all thefts above the value of a shilling were punished with death, dogs, cats, ferrets, and other like animals were excluded from the law of larceny, and not because a person could have no property in them. But what say the authorities on the point.? So far as I know, it has never been the subject of a judicial decision in any of the courts at Westminster. The only sources, therefore, to which we can have recourse for information are the text-writers of authority ; and the only / 9S SOMK IT.Cl'MAn CLASSES OK PKIISONAL PHOrKUTV. one wlio supports the view urgcil for the dcfcnclant at the trial is Mr. Chitty in his work on the Practice of Law. He there lays it down that "Trespass in general lies for takin};j any ani- mal or l)ird out of the actual possession of a person wlio has secured the same; but no action lies for enticing from the premises of the owner, and afterward killing or injuring, a cat, which is not considered of any value in law." He quotes no authority for this statement, and, so far as I have been able to ascertain, it is wholly unsupported by any. The reason he gives why no action will lie tor enticing a cat from the premises of its owner and then killing it is, that it is not considered of any value in law ; but if this be so, one does not see why it should be actionable to take a cat out of the actual possession of a per- son, since the cat must be equally valueless in the one case as in the other. Perhaps, however, by "out of the actual posses- sion" he means from off the premises, or out of the manual possession of the owner, and that in those cases the action is really for the trespass against his premises or person, and not for the taking of the cat. If it were not that he gives as a reason why an action will not lie, that a cat is of no value in law, one might infer that he intended that as soon as a cat leaves its owner's premises it ceases to be his property. And this might be good law if cats were not reclaimed animals; but this, at all events, those authorities who class cats amongst animals ferae naturae, allow them to be, so that they can not regain their natural liberty so long as they have animiim rcvcr- tciidi, of which the mere fact of their straying from the owner's premises is no evidence to the contrary. This reason given, therefore, by Mr. Chitty, for the law as he states it, is not altogether intelligible; at all events it is not clearly expressed. On the other hand, Blackstone, J., in his Commentaries, after remarking that it is not felony at common law to steal such animals ferae naturae though reclaimed, as "are only kept for pleasure, curiosity, or whim, as dogs, bears, cats, apes, parrots, and singing-birds, because their value is not intrinsic, but depending only on the caprice of the owner," adds, but "it is such an invasion of property as may amount to a civil injury, and be redressed by a civil action." So also in another passage be says: "As to those animals which do not serve for food, and which, therefore, the law holds to have no intrinsic value, PKUTV. WIIITTINCHAM V. inKSO.V. 99 t at the trial r. He tlicre iiiifj any ani- on vvli" lias ng from tlie juring, a cat, le quotes no been able to ason he gives ! premises of dered of any ,vhy it should sion of a per- e one case as ictual posses- t the manual the action is rson, and not he gives as a )f no value in oon as a cat ^perty. And ned animals ; cats amongst they can not nimimi rcvcr- n the owner's reason given, ates it, is not *ly expressed, entaries, after ' to steal such only kept for apes, parrots, intrinsic, but Ids, but "it is a civil injury, nother passage serve for food, ntrinsic value, as dogs of all sorts, and other creatures kept for whim or pleas- ure, though a man may have a bare property therein, and maintain a civil action for the loss of them, yet they are not of such estimation, as that the crime of stealing them amounts to larceny." It is clear, therefore, that it was the opinion of HIackstone, J., that there may be a property in cats. In IJacon's Abridgment of the Law it is also laid down that "an action of trespass lies for taking or killing a dog; because as a dog is a tame animal, there may as well be a property therein as in any other animal." This, though dog only is mentioned, is equally an authority for a cat being property; for cats and dogs are always treated as belonging, in law, to the same class of animals, and arc held not to be subjects of larceny for one and the same reason. But in addition to this passage there is another, in the sa.ne author, which clearly includes cats. It is there said, "If a beast or bird which is ferae fiaturac have been reclaimed, this action (trespass) lies for the taking or killing thereof, because there is a property in the beast or bird." Toller, in his Law of Executors, also says: "Since the executor's interest is coextensive with that vested in the testator, the property in all his animals, however minute in point of value, shall go to the executor, as house-dogs, ferrets, and the like, or, although they were kept only for pleasure, curiosity, or whim, as lap-dogs, squirrels, parrots, and singing- birds." The description in this passage of the animals which will go to the executor is almost in the words of IJlackstone, J., which I have quoted. It is true that it does not make special mention of cats ; but there can not be a doubt they were intended to be included under the expression "and the like." Lastly, the criminal law commissioners, one of whom was the present Wightman, J., and two others, the late Mr. Starkie and the late Mr. Amos, both very Jearned lawyers, and both of them judges of county courts, and Downing, Professor of Law at Cambridge, in their first report in observing upon the reason why animalsyrraf naturae, which are not fit for food, are not the subjects of larceny, although reclaimed, say: "It would seem that the rule upon this subject arose from the circumstance that the animals above specified, viz. : bears, foxes, apes, monkeys, pole-cats, cats, and dogs, etc., being unfit for food, were not formerly marketable and of a determinate value. But they are lOO SOME rECn.IAH CLASSES OK PEHSoVAI. I'UOl'KUTY. nil now the subject of a civil itMiiedy for property. With this ^reat weight of authority at,Minst Mr. Chitty's single clicliiin. I have no hesitation in givinj,' it as my opinion that a peri^on may liave a property in a cat, and, therefore, that an action will lie to recover damajjes for killing it. There may be cir- cumstances under which it would he justifiahle to kill a cat; but it is not justillahle to do sn merely because it is a trespasser, even though after ;,'aine. These facts alone were not sufticient, in my opinion, to justify the defendant in killing it. As con- nected with the ipiestion of property in cats, I may mention that cats were looked upon by our ancestors, the ancient Britons, as creatures of intrinsic value, and the killinj; or even stealing of them a grievous crime, and subjected the offender to a tine. And if the cat belon{,'ed to the kind's household, and was kept for the purpose of destroying the rats or mice in the royal granary, it was protected by the following curious law: "If any one shall steal or kill a cat, being the guardian of the king's granary, let the cat be hung up by the tip of its tail, with its head touching the floor, and let grams of wheat be poured upon it until the extremity of its tail be covered with the wheat." As much wheat as would be required for this purpose was the measure of the forfeiture to which the offender was liable. Being of opinion that this action is properly brought, I have next to consider whether the amount of damages claimed, ^2, is warranted by the facts proved in evidence. In actions of trespass, unattended by circumstances of aggravation, the proper measure of damages, where any article has been destroyed, is the market value of the article so destroyed; but in the case of an ordinary domestic cat, like the one to which the present action refers, it is very difficult to say what is its market value, such cats being seldom sold. There can be no doubt, as a general rule, even in the case of good mousers, a few shillings would be considered a sufficient price. Was, then, the killing of the cat in question attended by any circumstances of aggravation.' Where the measure of damages is the mere worth of the thing injured, the injury must be unintentional; i£ willfully occasioned, that would be a circumstance of aggra- vation, and would justify a jury in giving damages beyond the mere money value of the thing injured. In the present case !■ il'KUTV. I'LKKT V. IIKCKMAM. lOI '. With this j^le clicluin, I ;hut a pertioi? lat an action e may be cir- to kill a cat; i a trespasser, not sufticient, it. As con- may mention cient Hritons, even stealing uler to a fine, and was kept ; in the royal >us law: "If ardian of the tip of its tail, 5 of wheat V)e covered with quired for this :h the offender Droupjht, I have claimed, ;^3, In actions of ^ravation, the cle has been destroyed ; but e one to which ay what is its here can be no mousers, a few Was, then, the ircumstances of ;s is the mere unintentional ; tance of aggra- ges beyond the le present case the killing of the cat was intentional ; I must, therefore, give something for damages on that iccount, biyond the few sliil- lings which otherwise I should have considered sutllcient; but as the defendant may have thought, in the present not very clear state of the law on the subject, that he was justified in killing the cat for the protection of his master's game, I should not go so far as I should otherwise have done, or as I should have done if he had killed it to annoy the plaintiff, or to gratify any feeling of spite or revcn»;e. Under all the circumstances, I think if I direct judgment to be entered for lo.y., I shall do all that the justice of the case re(|uircs. Let judgment, there- fore, be entered for that amount. Consult— State v. Turner, 66 N. C. 6i8; Com. v. Benman, 8 Gray, 497; Manning V. Mitcherson, 69 Ga. 447. 47 Am. Uep. 764; Haywood V. State, 4t Ark. 479; LUery v. Jones, 81 III. 403; Osborn v. LewU, 2 Allen, 207. § 22. Tame animals— The oyster. FLEET V. HEGEMAN. [14 Wend. 43.] Supreme Court of Nc-m York, 183S' Fleet sued Hegeman and two others in an action for trespass in a justice's court for taking and carrying away two thousand oysters, the goods and chattels of the plaintiff. The defendants pleaded the general issue. The cause was tried by a jury and a verdict found for the defendants, on which the justice rendered judgment. The plaintiff sued out a certiorari returnable in the common pleas of Queens; which court affirmed the judgment of the justice. Whereupon the plaintiff removed the record into this court by writ of error. For the return of the justice, it ap- peared that the plaintiff had an oyster bed in Oyster Bay, in Queens county, of the extent of four or five square rods, m- closed with ?^ikes, at the distance of about fifteen rods from the shore opposite land owned by him or his father. About two years before the trial which took place in November, 102 SOMK PECULIAR CLASSES OF PEUSOXAL PROPEIlTy. 1S33, the plaintiff put into this inclosurc a quantity of very small oysters, picked up along the shores; and shortly previous to the trial, the defendants went :r.io the bed inclosed by the plaintiffs and raked up and took six hundred or seven hundred oysters, worth from $10 to $i i. Five or six years pre' ions to the trial oysters were plenty in t!ie bay, but since then they were not to be found, except when they were planted. Nelson, J. — It has before been decided that the right of fishing in this harbor or bay belonged exclusively to the inhab- itants of tlie town of Oyster Bay, derived by grant from the crown of England. Rogers v. Jones, 1 Wend. 337. In that case Rogers was sued for a penalty created by a by-law of the town declaring that "no person not being an inhabitant of Oyster Bay shall be allowed to rake or take any oysters in the creeks or harl)ors of the town, under the penalty of $12.^0 for each offense." He had entered the harbor or bay and caught and carried u,vay a quantity of oysters, about one hundred yards from the beach ; was a citizen of New York, but not an inhabitant of the town. The defense was put upon the ground that the bay being an arm of the sea where the tide ebbed and flowed was a common fishery for all the citize.is of the state, and that the inhabitants of the town possessed no exclusive right. The court decided that the grant to them by Sir Edward Andross under Charles II invested them with that right and sustained the by-law under which the penalty was inflicted. See, also, 6 Cow. 376. Both parties in this case probably are inhabitants of the town, and therefore are entitled to the common right of fishing in the bay. At all events no question of the kind is raised in the case and we assume such right belonged to the defendants. The plaintiff had gathered the oysters when small, some two years before the trial, and planted them in a bed in the bay about fifteen rods from the shore : none grew there at the time, nor have any grown since outside of the Led. That a qualified property in the oysters was acquired by the plaintiff is admitted ; but it is contended that the planting them in the bay, where a common right of taking them existed, was an abandonment of them to the public use. If so, it must be bv force of law, for the case fully discloses that no such intent ir» ^Mi EIITY. FLEET V. HEGEMAN. 103 tity of very tly previous losed by the •en huncired vious to the n they were he right of ) the inhab- nt from the !. 237. In a by-law of nhabitant of ysters in the f $12.50 for 1 caught and idred yards n inhabitant ind that the and flowed te, and that right. The rd Andross d sustained See, also, tants of the ht of fishing is raised in defendants. 1, some two in the bay here at the Led. That the plaintiff them in the ted, was an must be by ch intent in point of fact existed. On the contrary, they were deposited there by the owner to improve, or rather give value to, them, and with reference to an ulterior use. As to all inanimate things an absolute property in possession may be acquired in them— such as goods, plate, money; and if the article in ques- tion could be considered as 'ling within that description, there could be no doubt the defense taken would be unten- able, unless there was an abandonment in fact. Oysters have not the power of locomotion any more than inanimate things, and when property has once been acquired in them, no good reason is perceived ,vhy it should not be governed by the rules of law applicable n inanimate things. But, it is contended, they fall within the rules of law applicable to animals denom- inated /tvw naturae, the same as deer in ths forest, pigeons in the air, or fish in public watcis or the ocean. A qualified property is acquired in these by reclaiming and taming them ; or by so confining them within the immediate power of the owner as to prevent their escape and the use of their natural liberty. Deer in a park, hares or rabbits in a warren, or fish in private ponds or trunks, are instance^ of this description. These, it is said, are the property of a ma-i no longer than while they contin"? in his keeping or possession. Manucapture is not necessary to acquire, much less to continue, possession of this property. 3 Caines, 17S. If a deer or any wild animal reclaimed hath a collar or other mark put upon him and goes and returns at pleasure it is not lawful for anyone else to take him ; though if he be long absent without returning it is other- wise. In all these cases of wild animals reclaimed, the property is not absolute, but defeasible, by the animals resuming their ancient wildness and going at large — as, if the deer escape from the park, or the i.o.ies from the pond or trunk and are found at lurge in their proper element, they become ferae naturae again and are free to the first occupant that may seize them. But while they con- tinue the owner's qualified property they are under the pro- tection of the law, as much so as if they were absolutely and indefcasibly his ; and an action will lie for any injury committed. 2 Black. Comm. 395, 396, 397 ; 3 Co. Litt. 294, note c; 7 Co. S6, case of Swans, S Vin., tit. Property B. I04 SOME PECULIAR CLASSES OF PERSOXAL PROPERTY. It is clear from the principles and cases above mentioned that the riji^ht to appropriate property of the description in question does not depend exclusively upon the place where they are found, but upon the fact that they are ferae Jiaiurae unclaimed ; for though the deer should be found browsing in his own forest, and the pigeon Hying in the air, or any of the class reclaimablc, at large, if they have been in fact domesti- cated and possess the animus rcvcrtcndi, they are not common property, and the occupant who takes them gets no title ; and if he takes them knowing their condition he becomes a tres- passer. This is clear upon well-settled authority. The right of the plaintiff to the oysters is within the reason of these prin- ciples. They have been reclaimed and are as entirely within his possession and control as his swans or other water-fowl that may float habitually in the bay. They were distinctly designated according to usage, and besides, the defendants had actual information of the ownership, and they can set up no greater right to take them, because found in their native element, than tame pigeons in the air, or a domesticated deer upon the mountain. If the bed interfered with the exercise of the common right of fishing, or if the the oysters were undis- tinguished among others belonging to the public waters, the interest of the owners in them would undoubtedly be subservient to the enjoyment of the public use. But the exer- cise of that right in this case was a mere pretense. No oysters of the natural growth of the bay, fit for use, had been found there for years. The bed interfered with no other sort of fishing for either profit or pleasure. The case presents a delib- erate and wanton violation of property acquired by the industry and caie of another, under the pretext of exercising a right in common which the defendants knew to be fruitless. VVe cer- tainly would have regretted if the law had given countenance to such depredations, and we are rejoiced to find they are as gross a violation of the law as they are of the first principles of justice. Judgment reversed. Consult — State v. Tavlor, 27 N. J. (L.) 117, 72 Am. Dec. 347; Decker V. Fisher, 4 Barb. 592; Brinckerhoff v. Starkins, 11 Barb. 248; Lowndes v. Dickerson, 34 Barb. 5S6. J PERTY. SOME PECULIAR CLASSES OF PERSONAL PROPERTY, IO5 e mentioned ascription in Dlace where '.rae naturae browsing in )r any of the let domesti- not common 10 title ; and :omes a tres- . The right f these prin- tirely within • water-fowl re distinctly ; defendants y can set up their native sticated deer e exercise of were undis- waters, the Dubtedly be Sut the exer- No oysters been found ther sort of ents a delib- the industry ig a right in ;s. VVe cer- countenance . they are as st principles 2nt reversed. m. Dec. 347; II Barb. 24S; ^23. Mortuary property. PIERCE V. PROPRIETORS OF SWAN POINT CEMETERY. [10 R. I. 227 ; 14 Am. Rep. 667.] Supreme Court of Rhode Island^ 1872. Potter, J. — In this case one of the respondents, Mrs. Met- calf, has removed the body of her husband from its former place of burial, in Swan Point Cemetery, and claims that she had the right to do so, being, as his widow, entitled to the charge of it. The claim is resisted by his only child, the com- plainant. It seems strange that controversies of this sort have not arisen often before. In Europe burials were matters of eccle- siastical cognizance, and the practice of burials in churches and churchyards, common. In many parts of New England the parish system prevailed and every family was considered to have a right of burial in the churchyard of the parish in which they lived until they removed to another parish. In Rhode Island, from the scattered nature of the population in most parts of the state, it was the early practice to bury upon the family estate, and when the estate was sold the right was gen- erally reserved. Burial grounds of this sort have remained to families for many generations — in many cases, from the first settlement; and the dead are brought from a great distance to be buried among their ancestors and kindred. By the civil law of ancient Rome, the charge of burial was first upon the per- son to whom it was delegated by the deceased ; second, upon the scripH hueredes (to whom the property was given), and if none, then upon the hacredes legetimi or cognati, in order. Pothier, Pand. [Paris Ed. 1S18], vol. 3, page 378; Corpus Juris. Digest, lib. 11, title 7, 1. 12, sec. 4. Bu'. a body, once buried, could not be removed except by the permission, in Rome, of the Pontifical College, and in the provinces of the governor. Pothier, ante, and Digest, lib. 11, title 7, 11. 8, 39 and 40. And by the Roman law there was a distinction of tombs into familiaria, into which any member of the family I06 SOME PECULIAR CLASSES OF PERSONAL PROPERTY. might be admitted, and hereditaria, for one's self and his heirs. Digest, lib. ii, tit. 7, 1. 5. The heirs might be com- pelled to comply with the provisions of the will in regard to burial. Digest, lib. 5, tit. 3. 1. 50. And the Pontifical Col- lege had the power of providing for the burial of diose who had no place of burial in their own right. Taylor's Civil Law, quarto 1755, p. 77. By the canon law, which prevailed in such matters over so large a part of Europe, every one was to be buried in the parish churchyard, or in his ancestral sepulchre (if any), or in such place as he might select. A wife was to be buried with her last husband, if more than one. If a person permanently changed his residence, then he was to be buried in the parish churchyard of his new residence. Corvinus's Jes Canonicum; Voctad Pandectas [Ed. 1731], vol. i, p. 603. In England, by their ecclesiastical law by which this sub- ject was regulated, every person (with exception of traitors, etc.) had a right to be buried in the parish churchyard. And a claim of right, by custom, to bury as near relatives as possi- ble, was hehl bad. The whole was under the direction of the ordinary, and was of ecclesiastical cognizance. And once buried, the body could not be removed without license from the ordinary. Hum's Eccl. Law [S Ed.], vol. i, 351, 271, 372; Kemp V. Wickes, 3 Phillim. 264. And the person who set up a monument, or, on his death, the heir of the deceased, might have an action for injury to it. i Burn, 373. And the husband was bound to bury his wife. Jenkins v. Tucker, i H. Black, 90. See, for a full account, Bingham's Christian Antiquities, from which much of the historical matter in legal arguments and in reports has probably been taken without acknowledgment. Rex V. Stewart, I3 A. & E. 773, was an application for a mandamus to compel overseers, etc., to bury a person. The court: "It should seem that the individual under whose roof a poor person dies is bound to carry the body decently covered to the place of burial ; he can not keep him unburicd, or do anvthing which prevents Christian burial ; he can not, there- fore, cast him out so as to expose the body tr violation, or to offetd the feelings or endanger the health of the living; and for iPERTY. self and his light be com- \n regard to ontifical Col- of those who 's Civil Law, matters over buried in the if any), or in ; buried with permanently in the parish , Canonicum; lich this sub- n of traitors, :hyard. And fives as possi- rection of the . And once license from ■ I, 351, 271, e person who the deceased, 173. And the > V. Tucker, i im's Christian natter in legal taken without plication for a person. The ler whose roof cently covered nburicd, or do :an not, there- 'iolation, or to living ; and for PIERCE V. PROPRIETORS OF SWAN POINT CEMETERY. 107 the same reason he can not carry him uncovered to the grave." The mandamus was refused for other reasons. The c]uestion is new in this state and we do not know that it has ever occurred in our mother country, and but seldom in the United States. That there is no right of property in a dead body, using the word in its ordinary sense, may well be admitted. Yet the burial of the dead is a, subject which inter- ests the feelings of mankind to u much greater degree than many matters of actual property. There is a duty imposed by the universal feelings of mankind to be discharged by some one toward the dead ; a duty, and we may also say a right, to protect from violation ; and the duty on the part of others to abstain from violation ; it may, therefore, be considered as a sort of q/tast property, and it would be discreditable to any system of law not to provide a remedy in such a case. It is common to speak of the right of burial, of a person's right to be buried, etc. In the case of Rex v. Stewart, before quoted, the court says: "Every person dying in this ^^antry * * * * has a right to Christian burial ; and that implies the right to be carried from the place where the dead body lies to the parish cemetery." In Gilbert y. Buzzard, i Hagg. Con. 34S, and s. c, 3 Phill. 335, Lord Stowell (Sir William Scott) says: "The rule of law which says that a man has a right to be buried in his own churchyard is to be found most certainly in many of our authoritative text-writers; but it is not quite so easy to find the rule which gives him the right of burying a large chest or trunk in company with himself. That is no part of his original and absolute right nor is it necessarily involved in it. That right strictly taken is to be returned to his parent earth for dissolu- tion and to be carried thither in a decent and inoffensive man- ner. When these purposes are answered, his rights are perhaps fully satisfied in the strict sense in which any claim in the !iature of an absolute right can be deemed to extend. So Dr. Burn, quoting Gibson's Condex Juris. Ecclesial Anglicanae, says: "Every parishioner hath and had always a right to be buried in" the parish burial ground, i Burn's Eccl. Law, 257. Most people look forward to the proper disposition of their remains and it is natural that they should feel an anxiety on the subject. And the right of a person to provide by will for the loS SOME PECULIAR CLASSES OF PEUSONAL PROPERTY. disposition of his body has been generally recognized. We have seen that by the canon law a person had the right to direct his place of sepulture. Voet, ante. Now, strictly speaking according to the strict rules of the old common law, a dead man can not be said to have rights. Yet it is common so to speak, and the very fact of the common use of such language, and of its being used in such cases as we have quoted, justifies us in speaking of it as a right in a certain qualified sense, and a right which ought to be protected. See i Chitty's General Practice, 50, note. And a sort of right of custody over or interest in the dead body, in the relatives of the deceased, is recognized in the statutes of many of our states. The laws of Indiana (R. S., chap. 7, sec. 37) prohibit the removal of a dead body without the consent of the- near relatives, or without the consent of the deceased, given in his lifetime. See, also. State V. Tate, 6 Blackf. tii. The lav/s of Louisiana and California recognize the interest of the relatives of the deceased in the body. Tyler's Am. Eccl. Law, sees. 1153 and 123S. See, also, the laws of Connecticut. Laws of 1849, p. 250, sec. 137: Laws of Vermont, 1S62, p. 129, title 11, chap. iS, sec. 8; Laws of Ohio, Swan's Revised Statutes, 1S54, p. 294. And see, also, the late English Statute of Burials, 15 and 16 Victoria, chap. 85, sees. 32 and 33; Baker's Laws relating to burials. See as to the various meanings of the word right, Austin's Province of Jurisp., vol. i, sec. 6, p. 292. See, also. Bill of Rights, sec. 5. "Every person ought to find a certain 'remedy for all injuries," etc. It has been the boast of many of the sages of the law that there is no wrong without a remedy. Says Lord Coke (Co. Lit. 197 b., I Thomas's Coke, 902): "The law wills that in every case where a man is wronged and endangered, he shall have a remedy." Lord Holt, in Ashby v. White: "If the plaintiff has a right, he must of necessity have a means to vin- dicate and maintain it." . . . "It is a vain thing to imagine a right without a remedy." Lord Raym. 938; s. c, 6 Modern, 45 ; Judgment of Lord Holt in Ashby v. White, etc., reprinted, iS;?7- • Smith's Lead. Cases, 342, 356. And see Lord Abin- t;. ' ' f ro'-etation of the old mi\-x\m, '■'■Boni judicis est am- t'<'.i:\i . - didioncm:" And the late Chief Justice Ames has . f\\ <■ :m»v lid it in his opinion in the case of Reynolds v. 'ERTY. nized. We ^ht to direct tly speal--in which it had been removed ; and therefore pray that said corporation may be di- rected to restore the remains to the lot from which they were removed, and that said Mrs. Metcalf be enjoined from inter- fering therewith. The defendant cemetery corporation has answered, admittingthe statements of the bill, and, while denying the jurisdiction of the court to dnect or control the manage- 112 SOME PECULIAR CLASSES OK I'EHSONAL Pnoi'KKTY. ment of the internal affairs of the corporation, submitting to execute, or permit to be executed, such decree as the court may mal, actual or s part of the or American 1 a house or in personal prop- ermined upon :d for sale in a workshop, or wherever it may bo before it shall be perma- nently placed, is personal projierty; nor will itbi- coutroverti-d that where statuary is placed u])oii a iiuihlin},', or so coiuiectod with it as to be consideroil part of it, it will be docaicd real property, and pass with a deed of the land. Hut the duubt in this case arises from the peculiar position and cliaraLter of this statue, it being placed in a courtyard before the house, on a base erected on an artilicial niouiul raised for the purpose of supporting it. The statue was not fastened to the base by cither clamps or cement, but it rested as ilrmly on it by its own vveij,dit, which was three or four tons, as if otherwise atlixed to it. The base was of masonry, the seams being pointed with cement, though the stones were not laid in either cement or mortal , and the mound was an artificial and permanent ei^ection, raised some two or three feet above the surrounding land, with a substantial stone foundation. If the statue had been actually affixed to the base by cement or clamps, or in any other manner, it would be conceded to be a fixture, and to belong to the realty. But as it was, it could have been removed without fracture to the base on which it rested. But is that circumstance controlling? A building of wood, weighing even less than this statue, but resting on a substantial foundation of masonry, would have belonged to the realty. A thing may be as Jirnily affixed to the land by gravitation as by clatnps or cement. Its character may depend much upon the object of its erection. Its destination, the in- tention of the person making the erection, often exercise a con- trolling influence, and its connection with the land is looked at principally for the purpose of ascertaining whether that intent was that the thing in question should retain its original chattel character, or whether it was designed to make it a permanent accession to the lands. • By the civil law, columns, figures, and statues, used to spout water at fountains, were regarded as immovable, or real. (Pan- dects, lib. 19, tit. I, sec. 17, vol. 7, by Pothier, 107); though it was inferred that statues resting on a base of masonry were not immovable, because they were there, not as part of the con- struction, but as ornaments. Corp. Jur. Civ., by Kreigel, lib. 19, tit. I, sec. 17; Poth. Pand. 109; Burrill's Law Diet , "Affixus." But Labeo held the rule to be "ca quae perpetui usus causa in Il6 SOME PECULIAR CLASSES OF PERSONAL PROPERTY. acdificiis sunt, acdifcii esse : quae vcro ad pracsens, non esse acdificii;" thus making the kind of property depend upon the question whether it was designed by the proprietor to be per- manent or temporary, or, as it was generally called by civilians, "its destination." Corp. Jur. Civ., by Kreigel, lib. 19, tit. i, sec. 17. And Pothier says that when, in the construction of a large vestibule or hall, niches are made, the statues attached ("at- tachees") to those niches make part of the house, for they are placed there ad intcgrandam domum. They serve to complete that part of the house. Indeed, the niches being made only to receive the statues, there will fail to be anything in the vestibule without the statues; and, he says, it is of such statues that we must understand what Papimanus says: ''Sigillaet statuae affixae, instriimento domus non continentur, scd domus portto sunt. Pothier de Communaute, sec. 56. By the French law, statues placed in a niche made expressly to receive them, though they could be removed without fracture or deterioration, are immovable, or part of the realty. Code Nap., sec. 535. But statues standing on pedestals in houses, courtyards, and gardens retain their character of "movable" or personal. Touillier, Droit Civil de France, 12. This has reference to statues only which do not stand on a substantial and permanent base or separate pedestal made expressly for them. For when a statue v. placed on a pedestal or base of masonry constructed expressly for it, it is governed by the same rule as when placed in a niche made expressly to receive it, and is immovable. 2 Repertoire Generale, Journal du Palais, by Ledru Rollin, 518, sec. 139. The statue in such case is regarded as making part of the same thing with the permanent base upon which it rests. The reasons f c r the French law upon this sub- ject are stated by the same author in the same work, page 517, sec. 129, where the rule is laid down with regard to such orna- ments as mirrors, pictures, and statues, that the law will presume the oprietor intended them as immovable, when they can not b^ taken away without fracture or deterioration, or leaving a gap or vacancy. A statue is regarded as integral -.vith the permanent base upon which it rests, and which was erected expressly for it, when the removal of the statue will offend the eye by presenting before it a distasteful gap {^''■vide ;UTY. SNEDEKER V. WARRING. 117 \ upon the to be per- y civilians, . 19, tit. I, of a large iched ("at- 01* they are complete ade only to he vestibule :es that we : ei statuae mus portio le expressly out fracture ilty. Code s in houses, "movable" This has substantial xpressly for or base of by the same ceive it, and u Palais, by J is regarded lit base upon >on this sub- k, page 517, \o such orna- he law will vable, when erioration, or 1 as integral i which was ; statue will gap (^'■'■vide choquattt"'), a foundation and base no longer appropriate or useful. lb., sec. 139. Things immovable by destinriion are said to be those objects movable in their nature, which, without being actually held to the ground, are destined to remain there perpetually, attached for use, improvement, or ornament. 2 Ledru Rollin, Repertoire Generale, 514, sec. 30. I think the French law, as applicable to statuary, is in accordance with reason and justice. It effectuates the inten- tion of the proprietor. No evidence could be received more satisfactory of the intent of the proprietor to make a statue a part, of his realty than the fact of his having prepared a niche or erected a permanent base of masonry expressly to receive it ; and to reuiovc a statue from its place, under such circumstances, would produce as great an injury and do as much violence to the freehold, by leaving an unseemly and unci, vered base, as it would have done if torn rudely from a fastening by which it had been connected with the land. The mound and base in this case, though designed in connection with the statue as an ornament to the grounds, would, when deprived of the statue, become a most objectionable deformity. There are ciicumstances in this case, not necessary under the French law, to indicate the intention to make this statue a per- manent erection, but greatly strengthening the presumption of such intent. The base was made of red sandstone, the same material as the statue, giving to both the statue and base the appearance of being but a single block, and both were also of the same material as the house. The statue was thus pecul- iarly fitted as an ornament for the grounds in front of that particular house. It was also of colossal size, and was not adapted to any other destination than a permanent ornament to the realty. The design and location of the statue were in every respect appropriate, in f;ood ta^te, and in harmony with the surrounding objects and circumstances. I lay entirely out of view in this case the fact that Thorn tes- tified that he intended to sell the statue when an opportunity should offer. His secret intention in that respect can have no legitimate bearing on the question. He clearly intended to make use of the statue to ornament his grounds, when he erected for it a permanent mound and base ; and a purchaser had a right so to infer and to be governed by the manifest and IlS SOME I'ECULIAR CLASSES OF PERSONAL PROPERTV. unmistakable evidences of intention. It was decided by the Court of Cassation in France, in Ilornelle v. Enregistr, 2 Ledru RoUin, Journal du Palais, Repertoire, etc., 214, that the desti- nation which gives to movable objects an immovable character, results from facts and circumstances determined by the law itself, and could neither be established or taken away by the simple declarations of the proprietor, whether oral or written. There is as much reason in this rule as in that of the common law, which deems every person to have intended the natural consequences of his own acts. There is no good reason for calling the statue personal because it was erected for ornament only, if it was clearly designed to be permanent. If Thorn had erected a bower or summerhouse of wickerwork, and had placed it on a perma- nent foundation in an appropriate place in front of his house, no one would doubt it belonged to the realty; and I think this statue as clearly belongs to the realty as a statue would, placed on the house, or as one of two statues placed on the gateposts at the entrance to the grounds. An ornamental monument in a cemetery is none the less real property because it is attached by its own weight alone to the foundation designed to give it perpetual support. It is said the statues and sphinxes of colossal size which adorn the avenue leading to the Temple of Karnak, at Thebes^ are secured on their solid foundations only in their own weight. Yet that has been found sufficient to preserve many of them undisturbed for four thousand years. Taylor's Africa, 113, ctscq.; and if a traveler should purchase from Mehemet Ali the land on which these interesting niins rest, it would seem quite absurd to hold that the deed did not cover the statues still standing and to claim that they were the still unadministcred personal assets of the Ptolemies, after an annexation of such long dura- tion. No legal distinction can be made between the sphinxes of Thebes and the statue of Thorn. Both were erected for orna- ment, and the latter was as colossal in size and as firmly annexed to the land as the former, and by the san e means. I apprehend the question whether the Pyramids of Egypt or Cleopatra's Needle are real or personal property does not depend on the result of an inquiry by the antiquarian whether they were originally made to adhere to their foundations with. PERTY. FARRAR V. STACKPOLE. 119 :ided by the ;istr, 2 Ledru lat the oesti- ile character, 1 by the law away by the I or written, the common 1 the natural tue personal was clearly 1 a bower or on a perma- )f his house, 1 I think this /ould, placed the gateposts e the less real alone to the al size which k, at Thebes, ■ own weight, lany of them a, ii^^ctscq.; ili the land on quite absurd still standing tered personal ch long dura- i the sphinxes ected for orna- and as firmly i:e means. Is of Egypt or erty does not larian whether jndations with. wafers, or sealing wax, or a handful of cement. It seems to me puerile to make the title to depend upon the use of such or of any other adhesive substances, when the great weight of the erection is a much stronger guaranty of permanence. The sundial stands on a somewhat different footing. It was made for use as well as for ornament, and could not be useful except when firmly placed in the open air and in the liglit of the sun. Though it does not appear that the stone on which it was placed was made expressly for it, it was appropriately located on a solid and durable foundation. There is good reason to believe it was designed to be a permanent fixture, because the material of which it was made was the same as that of the house and the statue, and because it was in every respect adapted to the place. My conclusion is, that the facts in the case called on the judge of the circuit to decikle, as a matter of law, that the prop- erty was real, and to nonsuit the plaintiff; and if I am right in this conclusion, the judgment of the supreme court should be reversed. Consult— Potter v. Cromwell, 40 N. Y. 287, 100 Am. Dec. 485 ; Teaff V. Hewitt, I Ohio St. 511, 59 Am. Dec. 634; Stockwell v. Campbell, 39 Conn. 382, 12 Am. Rep. 393; Shoemaker v. Simpson, 16 Kan. 43; Wood- man V. Pease, 17 N. H. 2S2 ; State v. Marshall, 4 Mo. (App.) 29; Hunt v. R. Co., 76 Mo. 115. § 26. Same— Constructive annexation. FARRAR V. STACKPOLE. [6 Me. 154.] Supreme yudicial Court of Maine, i82g, Weston, J. — If the claim in question passed as a constituent part of the mill, the plaintiffs h.ive mside out their title, and have a right to judgment on the verdict. A considerable portion ot the machinery and power of the mill, like that conveyed by the defendant, is designed to be applied to draw up logs into the mill, which is essential to the operation of one of this construc- tion. It is not denied that other parts of the machinery in- 120 SOMK I'ECri.IAK CI.ASSKS OF PERSONAL PROPERTY. tcntled for this purpose go witli the mill ; but it is insisted that the chain is of the nature of personal property, and therefore passes not by a deed of the realty, unless specially named. To this it may be answered, tirst, that if it be an essential part of the mill it is included in that term, whether rcil or per- sonal ; secondly, that that which is in its nature personal may change its character, if fixed, used, and appropriated to that which is real. Is it too much to say that the mill is incomplete without a chain, a cable, or other substitute? It may be that a millwright who contracts to erect a mill, and to furnish mate- rials, may be deemed to have completed his engagement with- out supplying a chain. One millwright, a witness in this case, has testified that such is his impression. And if this is under- stood generally his contract might not extend further. But the owner would find that he had yet something more to procure before the mill could be in a condition to operate. The chain is the last of the parts in the machinery to which the impelling power is communicated to effect the object in view. Its actual location in the succession of parts can make no difference. If it is in its nature essential to the mill, it is included in that term; and that, as has been before remarked, whether it be personal or real property. But, upon consideration, we are of opinion that it ought to be regarded as appertaining to and con- stituting a part of the realty. It is an ancient principle of law that certain things which in their nature are personal property, when attached to the realty, become part of it as fixtures. One criterion is that if that which is ordinarily personal be so fixed to the realty that it can not be severed therefrom without damage, it becomes part of the realty; as wainscot work and old fixed and dormant tables and bench- es. Other things pass as incident to the realty, as doves in a dovehouse, fish in a pond, or deer in a park. 2 Com. Dig. Biens B. On the other hand, as between landlord and tenant, for the benefit of trade, in modern times many things are re- garded as personal which, as between the heir and executor, would descend to the heir as part of the inheritance. Although the being fastened or fixed to the freehold is the leading principle in many of the cases in regard to fixtures, it has not been the only one. Windows, doors, and window shut- ters are often hung but not fastened to a building, yet they are 3PKRTY. 5 insisted that ind therefore :ially named. an essential ;r re il or per- personal may ■iated to that is incomplete may be that a furnish mate- gement with- is in this case, this is under- her. But the re to procure e. The chain the impelling w. Its actual difference. I£ :huled in that whether it be on, we are of ing to and con- lings which in d to the realty, It if that which t it can not be rtof the realty; es and bench- as doves in a 2 Com. Dig. 3rd and tenant, things are re- • and executor, nee. rcehold is the . to fixtures, it id window shut- >g. yet they are FAHRAR V. STACKPOLE. 121 properly part of the real estate, and pass with it; because it is not the mere fixing or fastening which is regarded, but the use, nature, and intention. Dane's Abr., ch. 76, art. 8, sec. 39- Mod- ern times have been fruitful in inventions and improvements for the more secure and comfortable use of buildings, as well as of many other things which administer to the enjoyment of life Venetian blinds, which admit the air and exclude the sun, whenever it is desirable so to do, are of modern use; so are lightning rods, which have now become common in this coun- try and in Europe. These might be removed from buildings without damage; yet, as suited «nd adapted to the buildings upon which they are placed, and as incident thereto, they are doubtless part of the inheritance, and would pass by deed as appertaining to the realty. But the genius and enterprise of the last half century has been in nothing more remark.nble than in the employment of some of the great agents of nature, by means of machinery, to an inPnite variety of purposes, for the saving of hum*i labor. Hence there has arisen in our country a multitude of establishments for working in cotton, wool, wood, iron, and marble, some under the denomination of mills, and others of factories, propelled, generally, by water power, but sometimes by steam. These establishments have in many in- stances, perhaps in most, acquired a general name, which is understood to embrace all their essential parts; not only the building which shelters, incloses, and secures tl.e machinery, but the machinery itself. Much of it might be e«fy^«tached without injury to the remaining parts or to the building; bu it would be a very narrow construction which should exclude it from passing by the general name by which the establishment is known, whether of mill or factory. The general principles of law must be applied to new kinds of property, as they spring into existence, in the progress 9f society, according to their nature and incidents, and the common sense of the community. The law will take notice of the mutations of language, and ot the meaning of new terms applied to new subjects as they arise. In other words, it will understand terms used by parties in their contracts, whether executed or executory, whether in re- lation to real or personal estate, according to their ordinary meaning and acceptation. 123 SOME PECULIAR CLASSES OF PERSONAL PROPERTV. There was at Bath, in this state, a sawmill propelled by steam, generally called the steam sawmill. Suppose this establishment had been conveyed by the name of the steam sawmill, without a more particular description. What would pass? There is nothing in the books with resp< ct to this species of property, for it is of quite modern invention; and there is no other mill of the kind in this part of the country. If you exclude such parts of the machinery as may be detached without injury to the other parts or to the building, you leave it mutilated, incomplete, and insufficient to perform its intended operations. The parties in using the general term would intend to embrace whatever was essential to it, accord- ing to its nature and desirrn: r'nd the law would doubtless so construe the conveyan je ^s . ..tuate the lawful intention of the parties. Salt pans ha ■ .eld to pass the realty, and to belong to the inheritance; bec.iuse adapted and designed for and incident to an esta) ' :h"ient for ihc manufacture of salt. The principle is that cert:un t . "ts, nal in their nature, when fitted and prepared to be v.sed xa HI, 'e.il estate, change their character, and appertain to the realty, as an incident or accessory to its principal. Upon this ground we are satisfied that the chain in question, being in the mill at the time, and essential to its beneficial enjoyment, passed by the deed of the defendant to Asa Redington, under whom the plaintiffs claim, independent of any reference to usage. The verdict is there- fore sustained, although not upon a ground in accordance with the impressions of the judge who presided at the trial. This we think, upon the whole, a fair application of the principles of law to the case. Had the term mill, however, by uniform and general usage, been understood not to embrace the chain, a different construction would no doubt have obtained ; for it is a term of art, the proper meaning of which would be fixed by the general understanding of those who are skilled and experienced in it. If they were not agreed, the law would adopt that which was most general, and which would best accord with the nature and character of the subject-matter. The jury have found, upon the evidence submitted to them, that by general and uniform usage the chain passed by a deed of the mill. This finding was somewhat stronger than the evi- dence warranted. It did appear that there had been exceptions OPERTV. propelled by Suppose this of the steam What would esp< ct to this nvention; and f the country, ly be detached ing, you leave ) perform its general term I to it, accord- d doubtless so :ul intention of the realty, and id designed for facture of salt, n their nature, estate, change an incident or ^'e are satisfied : the time, and the deed of the ilaintiffs claim, 'erdict is there- iccordance with [he trial. This E the principles ,er, by uniform jrace the chain, jbtained ; for it would be fixed ire skilled and the law would ich would best subject-matter, mitted to them, assed by a deed jer than the evi- been exceptions STATE SAVINGS DANK V. KIRCHEVAL. 123 to this usage, but the weight of evidence went to support it. At any rate, it is apparent that the usage is rather in favor than against the construction we have adopted. But as wc are of opinion that the title of the plaintiffs is well supported by the deed, independent of usage, it becomes unnecessary to decide upon the competency or effect of the testimony adduced upon this point. Judgment on the verdict. CoNSULT-Dudley v. Hurst, 67 Md. 44, i Am. St. Rep. 368; State v. Elliott, II N. H. 574; Caldwell v. Ene.is, 2 Mill. 348, 12 Am. Dec. 68i; McKeage v. Ins. Co., 81 N. Y. 38. 37 Am. Rep. 47^; Cohen v. K^Ier, 27 Mo. 122; Rogers v. Crow, 40 Mo. 91, 93 Am. Dec. 297. § 26. Same— Purpose and use as test. STATE §AVINGS BANK v. KIRCHEVAL. [6s Mo. 682; 27 Am. Rep. 310.] Supreme Court of Missouri, 1877. Suit to enjoin the removal of a frame building erected by defendant Allen on defendant Kircheval's land, mortgaged to plaintiff and sold by Kircheval to Allen in payment of its con- struction, and about to be removed by Allen. The land was occupied and used for a mill, built of brick. The building m question was about three feet from the mill and only connected with it by a wooden walk between the outer doors of the build- ings; was intended for an office and was built on block laid on the ground. It was constructed after the execution of the mortgage, and was intended to be removed. An injunction was decreed. . Henry, J,— The questions for consideration here are: 1. VvJs the building which it is alleged the defendants were about to remove, personal property .' 2. If not, would an action for damages have afforded an adequate remedy ? ... It must be admitted that the law in regard to fixtures is in a somewhat chaotic state. It is frequently difficult to determine, 124 SOME PECULIAR CLASSES PK PERSONAL PROPERTY. upon principle, whether an article of property is a fixture or not. There is a most embarrassing conflict in the adjudged cases. On grounds of public policy, to encourage trade, manufactures, antl agriculture, many things are regarded chattels in controversies between landlords and tenants which would unquestionably be held as fixtures, as between vendor and vendee ; and the same rule prevails between mortgagor and mortgagee as between grantor and grantee. In determining whether a building is part of and passes with the land, a good deal depends upon the object of its erection, the use for which it was designed. The intention of the party making the improvement, ultimately to remove it from the premises, will not, by any means, be a controlling fact. One may erect a brick or a stone house with an intention, after brief occupancy, to tear it down and build another on the same spot, but that intention would not make the building a chattel. "The desti- nation which gives a movable object an immovable character results from facts and circumstances determined by the law itself, and could neither be established nor taken away by the simple declaration of the proprietor, whether oral or written." Snedcker v. Warring, 12 N. Y. 17S. In Goff v. O'Connor, 16 111. 422, the court said: "Houses in common intendment of the law are not fixtures, but part of the land. • » * This does not depend, in the case of houses, so much upon the par- ticular mode of attaching or fixing and connecting them with the land upon which they stand or rest, as upon the uses and purposes for which they were erected and designed." In Cole V. Stewart, 11 Cush. 182, the building was intended by the owner to be temporary, and built with a view to ultimate removal. In a contest between the mortgagee, whose mortgage was executed subsequent to the erection of the house and a purchaser of the building from the mortgagor, it was held to be a fixture. In the light of these cases and many others which we have examined, we do not regard the fact that the building in c[uestion was erected as a temporary building, and with an intention of ultimate removal, at all decisive as to whether it became a part of the realty or not. The manner in which a building is placed upon land, whether upon wooden posts, or a rock, or brick foundation, does not determine its character. As was said by Parker, J., mm lOPERTY. is a fixture or I the adjudged :ourage trade, are regarded tenants which etween vendor een mortgagor In determining le land, a good ! use for which ty making the premises, will ne may erect a rief occupancy, : spot, but that "The desti- vable character ed by the law Ml away by the ral or written." f V. O'Connor, ion intendment * * » This 1 upon the par- ting them with n the uses and led." In Cole ntended by the jw to ultimate vhose mortgage le house and a : was held to be jy others which iiat the building ig, and with an as to whether it ed upon land, ick foundation, by Parker, J., STATE SAVINGS BANK V. KIUCHEVAL. 12 = in Snedcker v. Warring, above cited: "A thing may be as firmly fixed to the land by gravitation as by clamps or cement. Its character may depend upon the object of its erection." In Teaff V. Hewitt, i Ohio St. 511, it was held that: "The in- tention of the party making the annexation to make the article a permanent accession to the freehold, this intention to be inferred from the nature of the article aflixed, the relation and situation of the party making the annexation, the structure and mode of annexation and the purpose and use of which the annexation has been made" is a controlling circumstance in determining whether the structure is to be regarded as a fixture or not. In the case of Benjamin F. Butler, Adm., v. Page, 7 Mete. 43, Shaw, C. J., delivering the opinion of the court said: "All buildings erected and fixtures placed on mortgaged premises by the mortgagor must be regarded as permanently annexed to the freahold. They go to enhance the value of the estate and will, therefore, inure to the benefit of the mortgagee so far as they increase his security for his debt and to the same extent they enhance the value of the equity of redemption and thereby inure to the benefit of the mortgagor." In controver- sies between mortgagor and mortgagee the rule is more favor- able to the mortgagee in relation to fixtures than that which is applied between landlord and tenant, and applying the prin- ciples announced in the cases which we have cited, which we believe to be sound and salutary, we must hold that the building in question was a part of the realty and that neither the mortgagor nor the purchaser from him has a right to remove it. It becomes a part of the plaintiff's security for its debt. The remaining question is, did the facts alleged in the petition warrant the court in retaining the parties by injunction from removing the building. It is not essential that the injury threatened shall be irreparable to warrant a resort to the remedy by injunction. Our statute provides, section 24 page 1032, Wagner's Statutes, that "the .remedy by writ of injunction shall exist in all cases when an injury to real or personal property is threatened and to prevent the doing of any legal wrong whatever, whenever in the opinion of the court an adequate remedy can not be afforded by an action for damages." Would an action for damages have afforded an adequate remedy, is the question and ii 126 SOME PECfl.lAR CI.ASSKS OF PEUSOVAI. I-nOPI-nTV. not whether the threatened injury wouhl have been irreparable. The building was erected to be used in common with and as an othce for the mill. It was erected to supply the place of an oflice formerly used which had been appropriated to another purpose. Its immediate and constant use was of importance to the milling business. The value ot the building which a jury might have given as damages would not have been a sufficient compensation to the owner for its removal. The defendant Allen may have been solvent, amply able to respond in damages for his trespass, but it does not therefore follow that he coidd not be restrained from severing from the land a house which be- longed not to him, but to the owner of the land. If a man of large fortune, so wealthy as to place beyond a doubt his ability to pay any damages which might be assessed to me for his trespass, should determine and threaten to tear down my dwelling over my head, will it be said that a court of equity would be powerless to restrain him from executing his threats and that I would have no remedy but to suffer the wrong and sue for damages? There are inconveniences and perplexities to which one may be subjected by a trespass such as we are considering for which a jury could not under the rules of law fully compensate him, and we think the provision of our statute broiid enough, however the law may have been before its en- actment, to authorize a resort to injunction proceedings in such cases. The judgment of the circuit court is affirmed. All concur. Consult— Lipsky V. Borgmann, 52 Wis. 256, 38 Am. Rep. 735; Still- man V. Flenniken. 58 Iowa, 45°, 43 Am. Rep. 120; Lyle v. Palmer, 42 Mich. 314; Harlun v. Harlan, 15 Pa. St. 507, S3 Am. Dec. 612; Morris' Appeal. 88 Pa. St. 368; Green v. Phillips, 26 Gratt. 7.S2, 21 A.m. Rep. 323; McConnell v. Blood, 123 Mass. 47^ 25 Am. Rep. 12. lOPERTY. en irreparable. :in with and as the phice of an ited to another importance to g which a jury ecn a sufficient efendant Allen in damages for at he could not )use which be- 1. If a man of oulii; his ability to me for his ear down my court of equity ;ing his threats the wrong and nd perplexities such as we are he rules of law n of our statute I before its en- eedings in such afF.rmed. All I. Rep. 735; StUl- ,yle V. Palmer, 42 Am. Dec. 612; 26 Gratt. 752, 21 km. Rep. 12. SOMr. PECULIAR CLASSES OF PEHSONM. PROPKUTY. 127 § 27. Fixtures-intention of parties as the test. OTTUMWA WOOLEN MILLS CO. v. IIAWLEY. [44la. 57; H^'^'"I^«P'7'9.^ Supreme Court of Iowa, 1876. In 1S70 one Grim was the owner of part of an out lot in the" i of Ottumwa, upon which was situated a woolen manu- factory propelled by a steam engine, and w.nch manufactory '^Z:Z the usLl machinery and ^Ppl^-^^ --' - turin-cloth from wool. On the f.rst day of October, '^O' -" G m e.ecuted a trust deed on said real estate tosecu a o. of,4,ooofromthcV-^rInsuranceCo^^^ X:a t:r:^-i: :s::^or, appel.ant.stes.ator On^be -Tfrr^--:::tt,a:^^:j::: r:'; : tei ^'Z Oulmwa Woolen Mill Con.pany plaintiff and apTe t bercin, a deed for said land "with the budchng ami appen , movable machinery therem.' On fVio nrnnertv v/as sola on a spcLun ^ the property ^^^.^^tion, and during the year of !s 'xecJtors of said James Hawley, Senior. The descnpfon o t^ property in the decree of foreclosure and m the shenff 8 de d :s uistantially the same as in the trust deed Appellants fook Dossession of the building and machinery from p.anUiff. Td at7h r thereof were informed by the superintendent of I2S SOMK PECL'I.IAK CLASSES OF I'EKSONAL PKOPKniY. phiiiitiff that he had hccii histructcd not to suneiuler the machiiury. Upon refusal to deliver np the machinery to the appellee, this suit was bron^lit to recover its possession or value, claiming that said macliinery was personal property, and did not pass hy the trust deed, foreclosure, and sheriff's deed. The issue made hy the parties was as to the character of said machinery, wliethcr fixtures or personal property. There was trial to the court ar.d a t\ndmerty can be embraced therein. Appurtenances ore thini mging to another thing as principal, and which pass as incident to the principal thing. The term, as used in conveyances, passes nothing but the land and such things as belong thereto and are part of the realty. 2. The main question in the case, however, and to which counsel for both parties have principally directed their argu- ments, is as to the character of the machinery in question, whether it be real or personal property. Fixtures are a species of property which are the dividing line between n al and per- sonal and to decide on which side of the line certain property belongs is often a vexatious question. When we compare a thing at the extremity of one class with a thing at the extremity of another the difference is obvious, but when we approach the point of division, difficulty arises in discovering where the dis- tinction should be drawn. Hill on Fixtures, 16. On the ques- tion whether such machines so situated are fixtures, so that they constitute a part of the real estate, the authorities are so far from being uniform that no rule of universal application can be deduced from them without conflicting with the doctrines found I30 SOME r-ECULlAR CLASSES OF PERSONAL PROPERTY. in some of the decisions upon the subject. In New York, Ohio, Vermont, and some other states it is held that property of the character in question is personal, and does not pass by a mortgage or conveyance of the real estate. Murdock v. 'Jifford, iS N. Y. 28; Walker v. Sherman, 5 111. 527; Potter v. Cromwell, 40 N. Y. 287; Teaff v. Hewitt, i Ohio State, 511 ; Corwin V. Cowan, Id. 629; Hill v. Wentworth, 28 Vt. 42S ; Bartlett v. Wood, 32 Id. 372 ; Gale v. Ward, 14 Mass. 352. In Maine, Pennsylvania, New Hampshire, and in other states, the courts hold that property of the character in question is not personal and passes by mortgage or deed of the real estate. Farmrv. Stackpole, 6 Greenleaf, 155; Corliss v. McLogin, 29 Me. 115; Parsons v. Copeland, 38 Id. 537; Burnside v. Fritchell, 43 N. H. 390; Voorhis v. Freeman, 2 Watts & Serg. 116; Harlan v. Harlan, 15 Pa. St. 513. In all of these cases, and in all the others cited in argument, whenever the question arises as to the character of a steam engine or water wheel, which is the propelling pov/er of a mill, or manufactory, the uniform rule is that they are held to be fixtures and pass with the real estate. The same may be said of the stones or burrs in a grist mill, the cogwheels, gearing, and shafting in a mill or manufactory, they being parts of the motive power. The court below properly held the engine, boiler, shafting, and counter-shafting and the belting, to be fixtures, and that they passed under the mortgage foreclosure and sheriff's sale. With the belting or straps which propelled the looms, spinning jacks., etc., the court stopped, and in substance decided that here is the dividing line, all beyond are mere chattels. The basis or reasor for thus holding seems to be in the thought that there is nothing in the character of the property, or in the manner of its annexation to the building, or in its adaptation thereto, indicat- ing that it ^^as intended as a permanent accession to the realty, and that adaptation to the business carried on in the building is not a criterion for determining the question as to whether the machinery be real or personal property. It is argued that these looms, spinning jacks, etc., are equally well adapted to any other building, that they are manufactured with a view of being used in any woolen mill in which they maybe placed, that they are entire and complete machines in and of themselves, that the physical attachments are such that they may readily be removed m PERTY. OTTUMWA WOOLEN MILLS CO. V. HAWLEY. 131 New York, t property of lot pass by a k V. 'Jifford, 1 ; Potter v. ) State, 511 ; 28 Vt. 42S; Mass. 352. other states, lestion is not i real estate. V. McLogin, ; Burnside v. , 2 Watts & :n all of these whenever the ^hie or water manufactory, ires and pass the stones or shafting in a lotive power. shafting, and and that they ;'s sale. With pinning jacks., d that here is The basis or It that there is : manner of its ereto, indicat- 1 to the realty, the building is ;o whether the rued that these idapted to any \ view of being aced, that they selves, that the ily be removed to any other bunumg, and that there is nothing in the character of the machines or mode of annexation, to denote that they were intended as permanent accessions to the realty, and that, there- fore, they are chattels. In the case of Teaff v. Hewitt, i Ohio St. 511, it is said: "The true criterion of a fixture is the united application of the following requisites: i. Actual annexa- tion to the realty, something appurtenant thereto; 2. Applica- tion to the use or purpose to which that part of the realty with which it is connected is appropriated; 3. The intention of the party making the annexation to make a permanent accession to the freehold." In the application of the rule just stated, it was held that "the machinery in a woolen factory, consisting of carding machines, spiuping machines, power, looms, etc., connected with the motive power of the steam engine by bands and straps, but in no wise attached to the building, except by cleats, or other means to confine them to their proper places for use, and subject to removal whenever enience or business may require, without injury, are not fixtures, but chattel property." It was held in that case that the engine and boiler were fixtures. In Parsons v. Copeland, 38 Me. 537, it was held that the looms, carding machines, etc., belonging to a woolen factory, and placed thereon by the owners of the freehold, were fixtures, and pass with the realty. It is said by the court that "It can not be denied that the physical attachment of certain articles to ihe freehold is a very uncertain and unsatisfactory criterion. We have seen that it is well settled that the same attachment will not change the character of the article, when made under one species of tenancy, when under another, with much less of a permanent connection, it will cause the article to become a part of the real estate. Millstones, the gear of the mill, and the water wheel to which the power is applied, and the articles connected, which are universally conceded to be fixtures, and to pass with the realty, may be taken from their appropriate places without the withdrawing of a spike, a pin, or a nail, or the displacement of a cleat, their own -weight often keeping them in their intended position, and no injury whatever arise to the building from which they are taken. • • • But it is true, undoubtedly, that the building, the water wheel, and the gear designed for a grist mill have peculiarities, and are often 132 SOME rF.ClI.IAR CLASSES OF PERSONAL rROPEllTV. very different from the water wheel, the gear as well as the building intended to constitute parts of a woolen factory. And the machinery in the former consisting of the millstones, the cleansing apparatus, the bolts, the belts with their appendages, to carry the grain to the cleanser and the meal to the bolts, all of which are believed sometimes, if not generally, to be moved by means of the belts connected with the gear of the mill, together with the hopper, the hoops, trough, etc., are as easily removed as are the cards, the looms, and the pickers m the latter. If the building is designed for a woolen factory, the wheels and gearing to which the motive power is applied, con- structcd in a manner suited to promote the intended object, after the machines are placed in the buildings, it is only another step in the prosecution of the design, and it is not easy to understand wherein the latter fnil to have the properties of the former; or how one can have distinguishing characteristics from the other, so that oue is to be treated as personal property, whilst the other is real estate." The three requisites laid down in the case of Teaff v. Hewitt, as constituting a fixture, it is said, must all combine. The first being physical attachment, all the cases hold, is a very uncer- tain mid unsatisfactory criterion, and, in our opinion, the only value to be attached to it is in determining the intention of the owner of the freehold in making che annexation. If it be so affixed that its removal would materially injure the building, this is.evidcnce of an intention to make it a permanent aimexa- tion. The second requisite being application to the use or purpose to which that part of the realty with which it is con- nected is appropriated, is in this case fully met by the use of this machinery in a woolen mill, and without which the mill itself would be useless. The third requisite being the intention of the party making the annexation to make a permanent accession to the freehold, is, to our minds, the controlling \ consideration in determining the whole question. The char- ^ acter of the physical attachment, whether slight or other- wise, and the use are mainly important in determining the intention of the party making the annexation. And herein lies the reason of the rule, that many articles of property are mere chattels as between landlord and tenant which are fixtures as between heirs and executor, or vendor and vendee. A mere OPEllTY. as well as the factory. And millstones, the ir appendages, J the bolts, all f, to be moved ir of the mill, ,, are as easily pickers in the en factory, the s applied, con- itended object, igs, it is only id it is not easy e properties of characteristics sonal property, ?eaff V. Hewitt, line. The first is a very uncer- pinion, the only intention of the Dn. If it be so •e the building, manent annexa- 1 to the use or which it is con- it by the use of which the mill ing the intention ke a permanent , the controlling ion. The char- slight or other- determining the And herein lies roperty are mere h are fixtures as endee. A mere OTTUMWA WOOI.EX MILLS CO. V. HAWLEY. '33 tenant for a brief period is not held as intending to be making permanent annexations to the freehold. In our view, the court in the case of Teatf v. Hewitt, supra, after announcing the above requisites, in applying them to the case, holds physical attachment to be the principal criterion, leaving out of view the main consideration, viz., the intention of the party making the annexation. It being conceded by all the cases that the engine, boiler, and attachments, being the motive power, arc fixtures, and that the stones, or burrs, of a grist mill, with the attach- ments, are likewise fixtures, it is not easy to understand why any dividing line should be made at the point where the belting attaches to the other machinery. Is there anything in the whole record of this case tending to show that the machinery in question was intended to be any less permanent than the engine, shafting, or belt.? The fair presumption is, that the whole machinery, including that now in question, was placed in the building with the intention that they should remain there, as part of the manufactory, until worn out or displaced by others. This assumption is as strong and controlling as to the carding machines, spinning jacks, etc., as it is to the engine, shafting, and belts. Our conclusion is, that all of the machinery which was propelled by the engine, was part of the real estate, and passed with Mie foreclosure and sheriff's deed. It may be said that the boiler was encased in a brick wall, and by reason of being thus firmly attached, it was a fixture, and that the machines in question were capable of removal, and that this denoted an intention not to change their character from chattels to that of fixtures. The ready answer to this is, that all the authorities hold that the motive power of a mill or manufactory is part of the real estate, whether firmly attached or not. Steam engines are manufactured and sold as engines, without reference to any particular business or mill where they may be placed, and are as capable of being used in buildings indiscrim- inately as power, looms, spinning jacks, or carding machines. In conclusion it may be proper to say that this cause was sub- mitted at the June term, 1875. Since that time the personnel of the court has materially changed, and the conclusion now announced is the opinion of each member of the court as then and now constituted. The cause will be reversed and remanded with directions to ascertain the value of such of the property in \ J 134 SOME PECULIAR CLASSES OF PERSONAL PROPERTY. question as is not in any manner part of the machinery operated by the motive power, and as to such value phiintiff will be entitled to a judgment. , Reversed.'^ vsuLT— Foot V. Goodie, 96 N. C. 265, 60 Am. Rep. 4" ; Wheeler idell, 40 Mich. 693; I'ope v. Shinkle, 45 N. J. (L.) 39; P--*""" ;• re, 16 W. Va. 428- 37 Am. Rep. 789; Spruhen v. Stout, 52 Wis. CONf V. Bedell, ^u I'm-n. >jvj) • "i-~ •• — -• -^ Moore, 16 W. Va. 428,37 Am. Rep. 789; Spi 517; Copp V. Swift, 26 S. W. Rep. 438- •§ 28. Same-Between heir and executor or administrator. KINSELL V. BILLINGS. [35 lo-.va, IJ4.3 Supreme Court of/ozva, 1872. Miller, J.— On the trial the defendant requested the court to give the following, among other instructions, viz. : "If you find from the evidence that said property, when defendant took possession of it, was attached to the real estate in the form of a sawmill, dam, etc., it was a part of and belonging to the real estate, unless vou further find that it was placed there by virtue of a lease, 'with a right to remove at the end of said lease, or was put there by consent of or with the knowledge of the owner of the real estate, and without his objection ; and unless it was so put there under a lease or with the cbnsent or knowledge of the owner of the said real estate, and without his objection, it was, in contemplation of law, a part of the real estate ; and in order to entitle plaintiff to recover he must show such lease from said owner, or knowledge on his part of said improvements." The court refu.sed to give the instruction, and this rulmg i» assigned as error. This instruction should have been given. The evidence tended very strongly, to say the least, to show that the mill was a part of the realty. It was erected by one who at the time, claimed to be owner of the land on which it was situated, and it was built in a permanent manner, "partly in the bed of the river and partly in the bank;" the injury to the mill, therefore, would be an injury to the real property and tOPERTY. liiiery operated plaintiff will Reversed.'^ ;p. 411; Wheeler ^.) 39; Patton V. IT. Stout, 52 Wis. administrator. KINSELL V. niLLlXGS. 135 uested the court , viz.: "If you when defendant ;state in the form )elonging to the placed there by the end of said he knowledge of 5 objection ; and 1 the cbnsent or lite, and without a part of the real er he must show his part of said nd this ruling is lave been given, le least, to show IS erected by one ! land on which it t manner, "partly ik;" the injury to real property and the right of action would accrue to the heir, and not to the administrator. As between landlord and tenant, the rule of law, that whatever is annexed to the realty in the form of buildings, etc., becomes a part thereof, is liberally construed in favor of the tenant; but, as between the heir and the executor or admin- istrator, the rule obtains with the greatest rigor in fnvor of the inheritance, and against the right to consider as a personal chat- tel anything which has been affixed to the freehold. 3 Kent's Com., sec. 25, pp. 344, 345? ' ^ash. on Real Prop., 10-12, and cases cited. It is too wcll^understood to require tue citation of authorities that the real estate of the intestate descends to the heirs-at-law, and that the personal property only goes to the administrator, unless the latter proves inadequate for the payment of the debts of the intestate when under the statute the administrator may be empowered to sell enough of the real property to make up the deficit. See Rev., sees. 2374, 3375. An administrator has no right to receive the rents of real property accruing after the death of the intestate. Foteaux v. Lepage, 6 Iowa, 123, 130; Lepage v. McNamara, 3 Id. 124 ; Bcc/ley v.Burgett, 15 Id. 193. At the common law the administrator had no control over the real estate or over the rents and profits thereof, and such is still the law, except where the statute provides otherwise. Under the statute the administrator may maintain an action of forcibleentry (Rev., sec. 3954) ; and by chapter 139 of Laws of 1S66 it is provided, that "If there be no heirs or devisees of a testator or intestate present, or competent to take possession of the real estate left by such testator or intestate, the executor or administrator of his personal estate may, as trustee for the -proper hers or devisees, take possession of such real estate and demandand receive the rents and profits arising therefrom, and sue for and receive the same, and do all other acts and things relatin- to such real estate which may be for the benefit of the person" entitled thereto, and consistent with their rights and interests." Sec. 3. Whether, under this provision of the statute, an action for an injury to the real estate may be maintained by the executor or administrator, we need not decide, for it is apparent that this action is not intended to be brought thereunder. The administrator or executor may, "a^ trustee for the proper heirs I 136 SOME PECULIAR CLASSES OF PEIISONAL PROPERTV. or devisees,'' take possession and collect the rents ^nd profits, etc., only when there are "no heirs or devisees of the testator or intestate present or competent to take possession." When acting under this statute, the executor or administrator does so "as trustee for the proper heirs or devisees." and for their use and benefit, and not simply in his capacity as cKecutor or administrator; and when suing under this provision, the existence of the facts which authorize him to sue for their bene- fit should be averred, viz.: That there are no heirs or devisees present or competent (as the case may be) to take possession. The judgment of the circuit court is reversed. CoN-suLT-Brickley v. Brickley, n Barb. 43; Tuttle v. P oinson, 33 N. H. 104; Bainway v. Cobb, 99 Mass. 437; Clark v. Bu,. aside, 15 111. 62; Bradner v. Faulkner, 34 N. Y. 347- § 29. Same— Between mortgagor and mortgagee. WINSLOW V. MERCHANTS' INS. CO. [4 Mete. 310.] Supreme Judicial Court of Massachusetts, 1842. Shaw, C. J.— The court are of opinion that the steam engine and boilers, and all the engines and frames adapted to be moved and used by the steam engine, by means of connect- ing wheels, bands, or other gearing, as between mortgagor and mortgagee, are fixtures, or in the nature of fixtures, and con- stituted a part of the realty ; and that as all these fixtures were annexed to and made part of the realty by the mortgagor they are part of the mortgaged premises, and passed by the first mortgage to the defendants. A different rule may exist in regard to the respective rights of tenant and landlord, tenant for life and remainder-man or reversioner, and generally when one has a temporary and not a permanent interest in land. In those cases the rule as to what shall constitute fixtures is much relaxed in favor of those who make improvements on the real estate of others for the pur- OPERTV. s '•.nd profits, f the testator )n." • administrator ees'' and for ;ity as executor provision, the for their bene- ; no heirs or ly be) to take Lirt is reversed. V. P oinson, 33 Bui. aside, 15 UK gagee. i. CO. Us, 1842. that the steam imes adapted to ans of connect- 1 mortgagor and futures, and con- se fixtures were mortgagor they sed by the first respective rights :mainder-man or porary and not a e rule as to what ox of those who ers for the pur- WINSLOW V. MEnCHANTS' INS. CO. "37 poses of trade or other temporary use and enjoyment. Gaffield V Ilapgood, 17 Pick. 192. But the case of mortgagor and mortcragce stands upon a different footing. The mortgagor, to most'purposes, is regarded as the owner of the estate; mdeed, be is so regarded to all purposes, except so far as it is necessary to recognize the mortgagee as legal owner, for the purposes of his security. The improvements, therefore, which the mort- gagor, remaining in the possession and enjoyment of the mort- gac^ed premises, makes upon them, in contemplation of law he'niakes for himself and to enhance the general value of the estate, and not for its temporary enjoyment; whereas a tenant, m.nkin'g the same improvements upon the estate of another, with a"view to its temporary enjoyment, must be presumed to do it for himself, and not for the purpose of enhancing the value of the freehold. This rule, of course, will apply only to that class of improvements consisting of articles added and more or less permanently affixed to the realty, in regard to which it is doubtful whether they arc thereby made part of the realty or not, and when that question is to be decided by the presumed intent of the party making them. Take, for in- stance, the case of a dye kettle set in brickwork, which is for the time annexed to the freehold, but which may be removed without essential injury to the building, and so as to leave the premises in as good a condition as if it had not been set. If so set by an owner of the fee, for his own use, it would, we think, be regiirded as a fixture, an addition made to the realty by its owner, as an improvement, and would pass to the heir by descent, or to the devisee by will. But if the same addition had been made by a tenant for years, for the purpose of carry- iug on his own business, we think he would have a right to remove it, provided he exercise that right whilst he has the rightful possession of the estate— that is, before the expiration of his term. 17 Pick. 7ibi sup. Supposing the point to be clear, on the one side, as between heir and executor, and on the other, as between tenant and landlord, how does it stand as between mortgagor and mort- gagee? In the case of Union Bank v. Emerson, 15 Mass. 159, it was held that such a kettle, set by the owner of the freehold, before the mortgage, could not be removed by the mortgagor, or taken as his personal property, but passed by the deed to IjS SOME PECUMAU CLASSES OF PERSONAL PIIOPERTY. the mortgagee. It was considered an immaterial fact that the mortgage deed did not mention appmtcnances ; probably upon the ground that if the kettle was an appurtenance, and a for- tiori, if it was parcel, it would pass without express words: Kent V. Waite, lo Pick. 13S, And if it was neither, those words would not aid it. We are aware that in giving the opinion in that case it was stated by the court that if the defendant, after making the mortgage, had put in the kettle, they would have considered him authorized to remove it before delivering possession to the plaintiffs. There is mani- festly some mistake in this statement. It was not the defend- ant who made the mortgage ; he was a purchaser of the kettle, the same having been removed by the mortgagor, after the plaintiffs took possession, and been sold by him to the defend- ant. 13ut supposing, as is rather to be inferred from the con- text, that if the kettle had been put in by the mortgagor after the mortgage was made, the mortgagor would have had a right to remove it; it is to be remarked that no such point was decided by the court, nor was it necessary, upon the facts of that case ; and from the whole tenor of this very short report it seems probable that the point was not much considered. In the recent case of Noble v. Bossvorth, 19 Pick. 314, it was held that such kettles erected by the owner were to be deemed part of the realty and to have passed by a general deed of the estate, unless specially excepted. There the case of Union Bank v. Emerson was alluded to ; but the point was not then material, and the court expressly avoided giving any opinion, either affirming or calling in question its authority as to the present point of inquiry, by stating that whatever doubt there might be as to such fixtures erected by a tenant on leased premises, or by a mortgagor, after the estate had been mort- gaged, there was none wheb erected by an owner. It is obvious that this question can not arise where there is any express stipulation in the mortgage deed declaring either that such improvements to be made, and which are in their •nature equivocal, shall or shall not be deemed fixtures, and be bound as part of the realty. The question is: What is the rea- sonable and legal construction of a deed, granting an estate in mortgage, in the usual terms, where there is no stipulation on the subject? Such a deed must, of course, include all additions )PERTY. I fact that the robably upon :e, and a for- cpress words: neither, those in giving the •t that if the in the kettle, to remove it here is mani- •t the defend- r of the kettle, gor, after the to the defend- from the con- ortgagor after ve had a right ich point was 10 facts of that short report it sidered. ick. 314, it was to be deemed al deed of the case of Union : was not then y any opinion, ority as to the er doubt there lant on leased ad been mort- ar. where there is leclaring either :h are in their ixtures, and be Vhat is the rea- a^ an estate in stipulation on de all additions WINSI.OW V. MEUCHANTS' INS. CO. «39 which become dc facto part of the realty, and which are not m thc;r nature equivocal ; because a title to the wholo inchules every part. In regard to articles iloubtful in their nature we have already stated as our opinion that if added by the mort- gagor it is to be considered as done hy way of permanent improvement, for the general benefit of the estate, and not for its temporary enjoyment. Hunt v. Hunt, 14 Pick. 3S6. One of the objects, and indeed one of the most usual purposes of mortgaging real estate, is to enable the owner to raise money to be expended! on its improvement. If such improvements consist in actual fixtures, not doubtful in their nature, thvy go, of course, to the benefit and security of the mortgajjee, by increasing the value of the pledge. The expectation of such improvement and such increased value often enter into the con- sideration of the parties in estim.'iting the value of the property to be bound, and its sufficiency as security for the money advanced. And we think the same rule must apply to those articles which in their own nature are doubtful, whether actual fixtures or not. on the ground of the presumed intention of the parties. A presumption arises from the relation in which they stand that such improvements are intended to be permanent and not temporary, and that the freehold and the improvements intended to \)c made upon it are not to be severed, but to con- stitute one entire security. The mortgage is usually but a col- lateral security for money which the mortgagor binds hmiself to pay, and is therefore a hypothecation only, and not an aliena- tion of the mortgaged estate. And in this respect the distmc- tion between the tenant for years and the mortgagor is broad and obvious. The tenant for years can have no benefit from his improvements after the expiration of his term but by his right to remove them when they are capable of removal ; but the mortgagor has only to pay his debt, as he is bound to do, and as it is presumed he intends to do, and then he has all the benefit of his improvements in the enhanced value of the estate to which they have been annexed. The latter, therefore, may be presumed to have intended to annex the improvements to the freehold and make them permanent fixtures, whilst the former must be presumed, from his obvious interest, to erect the improvements for his own temporary accommodation during his term, intending to remove them before its expiration. !40 SOME PEClTLIAn Ct.ASSES OF pehsonal propk hty. The case of Gale v. Ward, 14 Mass. 352, is not, we think, an anthority i.pposed to this opinion; because it is manifest tjiat the court, in tliat case, roj^nrded the cardinj,' machines, though ponderous and Indky, as essentially personal property which mi<,dit have been attached and removed as the personal property of the owner, even though there had been no mortgage; and they had been erected by the owner in his own mill, for his own use. As to what shall be deemed fixtures and part of the realty, when the (piestion does not arise as between landlord and ten- ant, or tenant for life and remainder-man, in regard to improve- ments made by the tenant, it is ditticult to lay down any gen- eral rule which shall constitute a criterion. The rule that objects must be actually and firmly affixed to the freehold to become realty, or otherwise to be considered personalty, is far from constituting such criterion. Doors, window-blinds, and shutters capable of being removed without the slightest damage to a house, and even though at the time of a conveyance, an attachment, or a mortgage, actually detached, would be deemed, we suppose, a part of the house and pass with it. And so, we presume, mirrors, wardrobes, and other heavy articles of furni- ture, though fastened to the walls by screws, with considerable firmness, must be regarded as chattels. The difficulty is some- what increased when the question arises in respect to a mill or manufactory, where the parts are of ten so arranged and adapted, so ingeniously combined, as to be occasionally connected or dis- engaged as tile objects to be accomplished may require. In general terms, we think it may be said that when a building is erected as a mill, and the water works, or steam works which are relied upon to move the mill are erected at the same time, and the works to be driven by it are essential parts of the mill, adapted to be used in it and with it, though not at the time of the conveyance, attachment, or mortgage attached to the mill, are yet parts of it, and pass with it by a conveyance, mortgage, or attachment. Powell v. Monson & Brimfield Manuf. Co., 3 Mason, 466; Farrar v. Stackpole, 6 Me. 154; Gray y. Holdship, 17 S. & R. 415; Voorhis v. Freeman, 2 W. & S. 116. In the present case, we are of opinion, upon the evidence submitted to the court, that the engine and boilers and the I'KIITY. , we think, an manifest ijiat lines, though apeity which oiia'i property lortgage ; and 1, for his own 5f the realty, llord and teii- d to iinproN e- 3wn any gen- 'he rule that le freehold to ionalty, is far vv-blinds, and jhtcst damage anveyance, an Id be deemed, And so, we tides of furni- h considerable iculty is some- ct to a mill or .1 and adapted, nnccted or dis- y require. In 1 a building is 1 works which the same time, rts of the mill, at the time of ed to the mill, nee, mortgage, d Manuf. Co., 154; Gray v. m, 2 W. & S. 1 the evidence oilers and the WINSLOW V. MEHCMANTS' INS. CO. 141 machines for working Iron upon which they operated, consider- in- the manner in which they were fitted and adapted to the mill, were fixtures and part of the realty, and were, of course, covered by a mortgage of the real estate. We arc also of opinion that all articles of stock, such as non and coal, and all materials to be wrought, and the hand tools, and ill implements not driven by the steam engine, and articles not annexed to the building, nor imbedded in the ground, nor constituting parts of such mill, arc to be deemed personalty, and not realty, and did not pass by the first mortgage to the defend- ants. , . In regard to the second mortgage, as far as it is a mortgage of red estate, it is not material whether the first registration was good or not; because the plaintiffs have no claim to the real estate. But it is contended on the part of the defendants that the mortgage deed to them of May 26, 1S36, was a mort- gage both of real and personal property; that it was duly reg- istered as a mortgage of personal property, in the city clerk's office, long before the plaintiffs' mortgage, and was therefore sufficient to bind the personal property. We think there is a satisfactory answer to this claim fvrnished by the facts. This deed purported to be a second mortga-" c f the real estate before mortgaged to the defendants with all and singular the machinery, tools, goods, chattels, and other prop- erty therein contained, together with all the machinery, tools, apparatus, and other property, whether fixtures or otherwise, nozv being or remaining on the premises, and also all other m-ichinery, engines, tools, and other property now contemplated to be placed in said building; said Pond, the mortgagor, war- ranting and agreeing that said instrument should be effectual to create a lien or mortgage on the machinery and tools afterward to be placed in said building; and he moreover stipulated, to remove all doubt, after the machinery and tools should have been actually placed therein, to execute any instrument which should be effectual and sufficient to create a lien and mortgage thereon. . , In point of fact, at the time of executing this instrument, the building had not been erected, and no machinery or tools whatever were then placed in it. In truth, a considerable part of those claimed in this action were not then in existence, but 143 SOMi; PECfLIAn CI.ASSKS OF PERSONAL PHOPKUTV. were iiiiinufacturcd afterward. "Articles contemplated to be placed therein," thonj-li then in existence, without any sched- ule, enumeration, or specitkation whatever, is, as a description, far too indelinitc and uncertain to constitute a lien upon the articles afterward actually placed in the luiildin},'. The cir- cumstance that some of tiie articles were in use by the mort- }^agor at a shop occupied by him m Water street, and were afterward removed to the shop in Ilawlcy street can not bring them within the description, vague as it is; because many of the articles so used at the shop in Water street were not removed; others were purchased or manufactured afterward; and therefore it still remains wholly uncertain which of them were "contemplated" to be put into the new l/uilding. The stipulation of the mortgagor to execute a further instrument of hypothecation when the articles should be put in, ami thus made certain, was a good executory contract, binding upon the covenantor personally, and for a breach of which he might have ':';en liable in damages, but not an executed contract, constituting a lien de facto upon articles not then bound by the mortgage. It was objected to the plaintiffs' mortgage that it was in- valid, because there was no schedule annexed, according to a stipulation contained in it. But the court are of opinion that it was good and available for all the articles which were in the shop at the time it was executed, so far as they remained and could l)e identified, although no schedule was annexed. The reference to a schedule to be annexed was not to limit or restrain the generality of the previous description of the property, but it was to be inserted for greater certainty and exactness, and the better to enable the mortgagee to identify the articles. It was not, therefore, essential to the validity of the mortgage. This case was adjusted by the parties on the principles of the foregoing opinion, and judgment was entered for the plaintiffs for the sum of $1,161.05. CoKSULT— Tifft V. Horton. 53 N. Y. 377, 13 Am. Rep. 537; Wright V. Gray, 73 Me. 277; Coleman v. Steam Mfg. Co., 38 Mich. 30; Bass Foundry Works v. Gallentene, 99 Ind. 525; Johnston v. Morrow, 60 Mo. 379; Pierce V. George, 108 Mass. 78, 11 Am. Rep. 310; Harkey V. Cain, 69 Tex. 146; Campbell v. Roddy, 44 N. J. (Eq.) 244, 6 Am. St. Rep. 8S9; Hamilton v. Huntley, 78 Ind. 521, 41 Am. Rep. 593. Thomas v. Davis, 76 Mo. 72. I'KUTV, SOMi; I'KCULIAU CLASSICS OK I'KRSONAI. rUOPKUTY. I43 iplatt^l to be lit any sched- [i ilcHcriplion, lien upon the 1}^. The cir- by the mort- :et, and were can not bring ause many of ect were not ;d afterward ; •hich of them lilding. The er instrument t in, ami thus binding upon hicli lie might ited contract, hen bound by that it was in- iccording to a jf opinion that :h were in the remained and nncxed. The 3t to limit or iption of the certainty and gee to identify the validity of » principles of ntered for the ^ep. 537; Wright B Mich. 30; Bass n V. Morrow, 60 ep. 310; Harkey Eq.) 244, 6 Am. I Am. Rep. 593. § 30. Bame-Between vendor and vendee. MILLER V. I'LUMB. [6 Cow. f/.s.] Supreme Court of New Vork, 1827. WooinvouTH, J.— The first objection is to the form of the record . A continuance is entered from June to October term ; and then an award of venire to December term, then next, at which day came the parties; and the jurors also came. This is sutliciently plain, and must be understood that the parties and jurors .appeared at December term. Although under the statute the continuance might have been awarded from June to December, without any award of venire, the present entry is substantially the same; and, at most, is only a miscontinuance, which is cured by the statute of jeofails. 3 John. 183. The more important question is whether the potash kettles, being affixed to the fneli.jld, passed with the land. If they did. the court below erred; and the judgment must be re- versed, unless the case falls within some of the qualifications or exceptions to the general rule. That rule appears to be well established ; whatever is aflixed to the freehold becomes part of it, and can not be removed. Exceptions have been admitted between landlord and tenant; between tenant for life or in tail and the reversioner ; yet the rule still holds between heir and executor. Bull. N. P. 34. In Holmes v. Tremper, 20 Johns.30, Chief Justice Spencer says: "When a farm is sold without any reservation the same rule would apply as to the right of the vendor to remove fixtures as exists between the heir aiui <■■ <'-titov." I I ElU rough, in the case of Elwes v. Maw, 3 East, . s down the law rebitive to fixtures as arising between ice classes of ersons: i. Between heir and executor. 2. Between the tACCutors of tenant for life or in tail and the remainder-man, or reversioner. 3. Between landlord and ten- ant; ikI observes that "in the first case the rule obtains with the most rigor in favor of tb-^ inheritance, and againft the right 144 SOME PECULIAR CLASSES OF PERSONAL PROPERTY. to (lisannex therefrom, and to consider as a peisonal chattel anythin- which has been affixed thereto." In the latter case the reasons for relaxing the rule are obvious, upon motives of public policy. The tenant is thereby encouraged to make mi- provements, and the interest of trade promoted, while the land- lord or reversioner has no cause to complain, inasmuch as the farm is restored to him in the same state as when he parted with it. A different rule would effectually check all improve- ments by the tenant, where it is known that at the end of the term they are to be surrendered to the landlord or the rever- sioner of tenant for life. But the case between heir and executor and vendor and vendee is widely different. The ancestor or vendor has the absolute control, not only of the land, but of the improvements. The heir and executor are both representative-^ of the ancestor; the vendor has an election to sell or not to sell the inheritance. If he does elect to sell, he knows that by law the fixtures pass; and there is no good reason why that law should inter, pose in his behalf, and protect him against the loss oi improve- ments which he has deliberately chosen to part with. It is for reasons of this kind, I apprehend, the old rule of law see.ns still to hold. In 7 Bac. 25S, this is expressly recognized. The author observes that although in an action of trover by an executor against an heir for a cider-mill, tried at Worcester, before Lord C. B. Comyns, his lordship was of opinion that it was personal estate, and directed the jury to find for the executor; yet Lord Mansfield has observed that thaf case, in all probability, turned upon a custom ; and that where no circumstances of that kind arise the rule still holds iii favor of the he r seems fully established by the decision of the Court of King's Bench, in Lavvton v. Lawton, Easter, 22 Geo. 7,. The title of the case referred to seems to be Lawton v. v-almon, and is to be found in i H. Bl. 259, note a. As reported, I do not find that Lord Mansfield, in giving this opinion of the court, says that the case before Comyns, C. B., turned upon a custom. Yet the whole scope of the opinion is clearly against it. He recognizes the relaxation of the old rule as con- fined to cases between landlord and tenant, and tenant for life and remainder-man ; where, for the benefit of trade, and as an encouragement to lay out money in improving the estate, there KViili^HHaMriHtaHaiHUBMHBiMBiHIHriM RTY. VAN NESS V. PACAKD. HS •nal chattel latter case motives of make ini- ile the land- nuch as the 1 he parted ill improve- end of the r the rever- ■n heir and erent. The only of the executor are s an election the fixtures should inter. ; oi improve- th. It is for f law see.ns ynized. The trover by an t Worcester, opinion that find for the iit that case, lat where no s in favor of £ the Court of 3eo. 7,. The n V. v'almon, reported, I do pinion of the , turned upon ion is clearly id rule as con- tenant for life ade, and as an B estate, there has been a departure from the old rule, which is no injury to the remainder-man, because he takes the estate in the same condition as if the thing in question had never been raised. He adds: "I can not find that between heir and executor there has been any relaxation of this sort, except in the case of the cider-mill, which is not printed at large." It was a nisi prius decision, and evidently considered as not controlling the general law. From this review it appears to me that the case of vendor and vendee rests on the same ground as that of heir and executor ; and that tiie fixtures in such cases are not considered as personal property. I incline to think the evidence of con- version was suflScient, and that the plaintiff was entitled to recover for some articles not annexed to the freehold ; but as damages were recovered for the whole, which can not now be severed, the judgment in the court below must be reversed, and a venire de novo awarded by the Common Pleas of Monroe. Judgment reversed. Consult— Weatherby V. Sleeper, 42 Miss. 732; Adams v. Beadle, 47 Iowa, 439, 29 Am. Rep. 487; Arnold v. Crowder, 81 111. 56, 25 Am. Rep. 260; McConnell v. Blood, 123 Mass. 47, 25 Am. Rep. 12; Climer v. Wallace,28 Mo. 556, 75 Am. Dec. 135; Sands v. Pfeiffer, 10 Cal. 263; Bowand v. Anderson, 33 Kan. 264, 53 Am. Rep. 529; Moore v. Valen- tine, 77 N. C. 188. § 31. Same— Landlord and tenant— Trade fixtures. VAN NESS V. PACARD. [2 Pet. 137.] Supreme Court of the United States, i82g, Mr. Justice Story. -This is a writ of error to the cirf uit court of the Distnct of Columbia, sittin? for the county of W-ashington. The original was an action on the case brought by the plaintiffs in error against the defendant for waste committed by him, while tenant of the plaintiffs, to their reversionary interest, by pulling down and removing from the demised 10 !46 SOME PECULIAR CLASSES OF PERSONAL PROPERTY. premises a messuage or dwelling house erected thereon and attached to the freehold. The cause was tried upon the general issue, and a verdict found for the defendant, upon which a judgment passed in his favor; and the object of the present writ of error is to revise that judgment. By the bill of exceptions filed at the trial it appeared that the plaintiffs in 1S20 demised to the defendant, for seven years, a vacant lot in the city of Washington, at the yearly rent of $113.50, with a clause in the lease that the defendant should have a right to purchase the same at any time during the term for $1,875. After the defendant had taken possession of the lot he erected thereon a wooden dwelling house, two stories high in front, with a shed of one story, a cellar of stone or brick foundation, and a brick chimney. The defendant and his family dwelt in th > house from its erection until near the expiration of the lease, when he took the same down and removed all the materials from the lot. The defendant was a carpenter by trade; and he gave evidence, that upon obtaining the lease he erected the building above mentioned with a view to carry on the business of a dairyman, and for the residence of his family and servants engaged in his said business ; and that the cellar, in which there was a spring, was made and exclusively used for a milk cellar, in which the utensils of his said business were kept and scalded, and washed, and used ; and that feed was kept in the upper part of the house, which was also occupied as a dwelling for his family. That the defendant had his tools as a carpenter, and two apprentices m the house, and a work-bench out of doors; and carpenter's work was done in the house, which was in a rough, unfinished state and made partly of old materials. That he also erected on the lot a stable for his cows of plank and timber fixed upon posts fastened into the ground, which stable he removed with the house before the expiration of his lease. Upon this evidence the counsel for the plaintiffs prayed for an instruction, that if the jury should believe the same to be true, the defendant was not justified in removing the said house from the premises ; and that he was liable to the plain- tiffs in this action. This instruction the court refused to give ; and the refusal constitutes his first exception. OPERTY. 1 thereon and led upon the fendrnt. upon object of the appeared that or seven years, yearly rent of fendant should luring the term ssession of the se, two stories iar of stone or defendant and tion until near ame down and lefendant was a upon obtaining ed wtt/i a view )X the residence i business ; and was made and I utensils of his shed, and used ; le house, which mily. That the o apprentices in and carpenter's ough, unfinished he also erected imber fixed upon le removed with intiffs prayed for the same to be moving the said ible to the plain- refused to give ; VAN NESS V. PACARD. H7 The defendant further offered evidence to prove that a usage and custom existed in the city of Washington, which author- ized a tenant to remove any building which he might erect upon rented premises, provided he did it before the expiration of the term. The plaintiffs objected to this evidence; but the court admitted it. This constitutes the second exception. Testimony was then introduced on this point, and after the examinations of the witnesses for the defendant, the plaintiffs prayed the court to instruct the jury that the evidence was not competent to establish the fact that a general usage had existed or did exist in the city of Washington which authorized a tenant to remove such a house as that erected by the tenant in this case ; nor was it competent for the jury to infer from the said evidence that such a usage had existed. The court refused to give this instruction, and this constitutes the third exception. The counsel for the plaintiffs then introduced witnesses to disprove the usage ; and after their testimony was given, he prayed the court to instruct the jury, that upon the evidence given as aforesaid in this case, it is not competent for them to find a usage or custom of the place by which the defendant could be justified in removing the house in question ; and there being no such usage, the plaintiffs are entitled to a verdict for the value of the house which the defendant pulled down and destroyed. The court was divided and did not give the instruction so prayed ; and this constitutes the fourth exception. The first exception raises the important question : What fix- tures erected by a tenant during his term are removable by him? . V u The general rule of the common law certainly is that what- ever is once annexed to the freehold becomes part of it, and can not afterward be removed, except by him who is entitled to the inheritance. The rule, however, never was, at ler"t as far back as we can trace it in the books, inflexible and wi'hout exceptions. It was construed most strictly between executor and heir in favor of the latter; more liberally between tenant for life or in tail, and remainder-man or reversioner, in favor of the former ; and with much greater latitude between land- lord and tenant in favor of the tenant. But an exception of a much broader cast, and whose origin may be traced almost as high as the rule itself, is of fixtures erected for the purposes of 148 SOME PECULIAR CLASSES OF PERSONAL PROPERTY. trade. Upon principles of public policy, and to encourage trade and manufactures, fixtures which were erected to carry on such business were allowed to be removed by the tenant during his term, and were deemed personalty for manv other purposes. The principal cases are collected and reviewed by Lord Ellenborough in delivering the opinion of the court in Elwes V. Maw, 3 East, 3S ; and it seems unnecessary to do more than to refer to that case for a full summary of the general doctrine and its admitted exceptions in England. The court there deckled, that, in the case of landlord and tenant, there had been no relaxation of the general rule in cases of erections solely for agricultural fur f OSes, however beneficial or import- ant they might be as improvements of the estate. Being once annexed to the freehold by the tenant they became a part of the realtv and could never afterward be severed by the tenant. The distinction is certainly a nice one between fixtures for the purposes of trade and fixtures for agricultural purposes ; at least in those cases where the sale of the produce constitutes the principal object of the tenant, and the erections are for the purpose of such a beneficial enjoyment of the estate. But that point is not now before us ; and it is now unnecessary to con- sider what the true doctrine is, or ought to be on this subject. However well settled it may now be in England, it can not escape remark that learned judges at different periods in that country have entertained different opinions upon it, down to the very date of the decision in Elwes v. Maw, 3 East, 38. The common law of England' is not to be taken in all respects to be that of America. Our ancestors brought with them its general principles, and claimed it as their birthright ; but they brought with them and adopted only that portior\ which was applicable to their situation. There could be little or no reason for doubting that the general doctrine as to things annexed to the freehold so far as it respects heirs and executors was adopted by them. The question could arise only between different claimants under the same ancestor, and no general policy could be subserved by withdrawing from the heir those things which his ancestor had chosen to leave annexed to the inheritance. But between landlord and tenant it is not so clear that the rigid rule of the common law, at least as it is expounded in 3 East, 38, was so applicable to their situation as to give rise )PERTY. VAN NESS V. PACAUD. 149 to encourage ;cted to carry by the tenant r manv other 1 reviewed by f the court in iry to do more »f the general i. The court I tenant, there es of erections cial or import- :. Being once ,e a part of the by the tenant, ixtures for the rposes ; at least constitutes the ns are for the tate. But that cessary to con- m this subject, and, it can not periods in that on it, down to J East, 38. »e taken in all s brought with heir birthright; ly that portior\ ; could be little •ine as to things -s and executors se only between and no general n the heir those e annexed to the it is not so clear s it is expounded )n as to give rise to necessary presumption in its favor. The country was a wil- derness, and the universal policy was to procure its cultivation and improvement. The owner of the soil as well as the public had every motive to encourage the tenant to devote himself to agriculture, and to favor any erections which should aid this result ; yet, in the comparative poverty of the country, what tenant could afford to erect f itures of much expense or value if he was to lose his whole interest therein by the very act of erection? His cabin or log hut, however necessary for any improvement of the soil, would cease to be his the moment it was finished. It might, therefore, deserve consideration whether, in case the doctrine were not previously adopted in a state by some authoritative practice or adjudication, it ought to be assumed by this court as a part of the jurisprudence of such state upon the mere footing of its existence in the common law. At present it is unnecessary to say more than that we give no opinion on this question. The case which has been argued at the bar may well be disposed of without any discussion of it. It has been already stated that the exception of buildings and other fixtures for the purpose of carrying on a trade or manufacture is of very ancient date and was recognized almost as early as the rule itself. The very point was decided in 20 Henry VII, 13, a. and 6., where it was laid down, that if a lessee for years made a furnace for his advantage, or a dyer made his vats or vessels io occupy his occupation, during the term, he may afterward remove them. That doctrine was recognized by Lord Holt is' Poole's Case, i Salk. 36S, in favor of a soap-boiler who was tenant for years. He held that the party might well remove the vats he set up in relation to trade, and that he might do it by the common law (and not by virtue of any custom) in favor of trade and to encourage industry. In Lawton v. Lawton, 3 Atk, 13, the same doc- trine was held in the case of a fire engine set up to work in a colliery by a tenant for life. Lord Hardwicke there said that since the time of Henry VII the general ground the courts have gone upon of relaxing the strict construction of law is that it is for the benefit of the public to encourage tenants for life to do what is advantageous to the estate during the term. He added, "one reason which weighs with me is its being a mixed case, between enjoying the profits of the land, I^O SOME PECULIAR CLASSES OF PERSONAL PROPERTY. and carrying on a species of trade; and in considering it in tliis light it comes very near the instances in brew-houses, etc., of furnaces and coppers." The case, too, of a cider-miU, between the executor and heir, etc., is extremely stro.ig, ^or though the cider is a part of the profits of the real estate, yet it was held by Lord Chief Baron Comyns, a very able common lawyer, that the cider-mill was personal estate notwithstanding, and that it should go to the executor. '-It does not differ it, in my opinion, whether the shed be made of brick or ■wood, for it is only intended to cover it from the weather and other incon- veniences." In Pcnton v. Robart, 2 East, 88, it was further decided that a tenant might remove his fixtures for trade even after the expiration of his term, if he yet remained in possession ; and Lord Xenyon recognized the doctrine in its most liberal extent. It has been suggested at the bar that this exception m favor of trade has never been applied to cases like that before the court, where a large house has been built and used in part as a family residence. But the question, whether removable or not, does not depend upon the form or size of the building, whether it has a brick foundation or not, or is one or two stories high, or has a brick or other chimney. The sole ques- tion is whether it is designed for purposes of trade or not. A tenant may erect a large as well as a small messuage, or a soap hoilery of one or two stories high, and on whatever founda- tions he mav choose. In Lawton v. Lawton, 3 Atk. 13, L01.I Hardwicke'said (as we have already seen) that it made no difference whether the shed of the engine be made of brick or stone. In Penton v. Robart, 2 East, 88, the building had a brick foundation, let into the ground, with a chimney belong- ing to it, upon which there was a superstructure of wood. Yet the court thought the building removable. In Elwes v. Maw, 3 East, 37, Lord EUenborough expressly stated that there was no difference between the building covering any fixed engine, utensils and the latter. The only point is whether it is acces- sory to carrying on the trade or not. If bona fide intended for this purpose it falls within the exception in favor of trade. The case of the Dutch barns before Lord Kenyon (Dean v. Allal- ley, 3Esp. Rep. n ; Woodfall's Landlord and Tenant, 219) is to the same effect. ROPERTY. msidering it in w-houses, etc., of a cider-mill, lely strong, ^or eal estate, yet it f able common lotwithstanding, i not differ it, in or -wood, for it nd other incon- , it was further s for trade even ed in possession ; its most liberal xeption in favor that before the used in part as ler removable or of the building, 3r is one or two The sole ques- rade or not. A ssuage, or a soap vhatever founda- 3 Atk. 13, Loiu that it made no made of brick or e building had a chimney belong- re of wood. Yet n Elwes v. Maw, stated that there J any fixed engine, ether it is acces- Jide intended for vor of trade. The n (Dean v. AUal- id Tenant, 219) is VAN NESS V. PACARD. »5' Then as to the residence of the family in the l^juse, this resolves itself into the same consideration. If th^ house were built principally for a dwelling house for the family, mdcpend- ently of carrying on the trade, then it would doubtless be deemed a fixture, falling under the general rule, and nnmov- able. But if the residence of the family was merely an acces- sory for the more beneficial exercise of the trade, and with u view to superior accommodation in this particular, then it is within the exception. There are many trades which can not be carried on well without the presence of many persons by night as well as by day. It is so in some valuable manufac- tories It is not unusual for persons employed in a bakery to sleep in the same building. Now, what was the evidence in the present case.? It was, "that the defendant erected the building before mentioned, with a view to carry on the business of a dairyman, and for the residence of his family and scrv- arts engaged in that business." The residence of the family was then auxiliary to the dairy; it was for the accommodation and beneficial operations of this trade. Surely, it can not be doubted, that in a business of this nature the immediate presence of the family and servants was, or might be, of very great utility and importance. The defend- ant was also a carpenter, and carried on his business as such in the same building. It is no objection that he carried on two trades '.nstead of one. There is not the slightest evidence of this one being a mere cover or evasion to conceal another, which was the principal design; and unless we are prepared to say (which we are not) that the mere fact that the house was used for a dwelling house as well as for a trade superseded the exception in favor of the latter, there is no ground to declare that the tenant was not entitled to remove it. At most, it would be deemed only a mixed case, analogous in principle to those before Lord Chief Baron Comyns, and Lord Hardwicke, and, therefore, entitled to the benefit of the exception. The case of Holmes v. Tremper, 20 Johns. 29, proceeds upon principles equally liberal, and it is quite certain that the supreme court of New York were not prepared at that time to adopt the doctrine of Elwes v. Maw in respect to erections for agricultural purposes. In our opinion the circuit court was right in refusing the first instruction. 152 SOME TECULIAn CLASSES OF PERSONAL PROPERTY. The second exception proceeds upon the ground that it was not competent to establish a usage and custom in the city of Washington for tenants to make such removals of buildings during their term. We can perceive no objection to such proof. Every demise between landlord and tenant in respect to matters in which the parties are silent may be fairly open to explanation by the general usage and custom of the country or of the district where the land lies. Every person under such circumstances is supposed to be conusant of the custom, and to contract with a tacit reference to it. Cases of this sort are familiar in the books ; as, for instance, to prove the right of a tenant to an away-going crop. 2 Starkie on Evidence, part 4, p. 453. In the very class of cases now before the court the custom of the country has been admitted to decide the right of the tenant to remove fixtures. Woodfall, Landlord and Tenant, 21S. The case before Lord Chief Justice Treby turned upon that point. BuUer, Nisi Prius, 34. The third exception turns upon the consideration whether the parol testimony was competent to establish such a usage and custom. Competent it certainly was, if by competent is meant that it wa% admissible to go to the jury. Whether it was such as ought to have satisfied their minds on the matter of fact was solely for their consideration; open, indeed, to such commen- tary and observation as the court might think proper in its dis- cretion to lay before them for their aid and guidance. We can not say that they were not at liberty, by the principles of law, to infer from the evidence the existence of the usage. The evidence might be somewhat loose and indeterminate, and so be urged with more or less effect upon their judgment; but in a legal sense it was within their own province to weigh it as proof or as usage. The last exception professes to call upon the court to insti- tute a comparison between the testimony introduced by the plaintiff and that introduced by the defendant against and for the usage. It requires from the court a decision upon its relative weight and credibility, which the court were not justified in giving to the jury in the shape of a positive instruction. Upon the whole, in our judgment, there is no error in the judgment of the circuit court, and it is affirmed, with costs. )PERTY. id that it was in the city of of buildings :tion to such ant in respect )e fairly open )f the country on under such i custom, and f this sort are the right of a idence, part 4, the court the \e the right of rd and Tenant, y turned upon 3n whether the li a usage and )etent is meant er it was such ter of fact was such commen- ■oper in its dis- »nce. We can iciples of law, i usage. The ninate, and so ^ment; but in a eigh it as proof ; court to insti- oduced by the it against and cision upon its ourt were not of a positive is no error in affirmed, with GAFFIKLD V. HAPGOOD. «53 CoNSULT-Wall V. Hinds, 4 Gray, 256, 64 Am. Dec. 64; Torrey v. Consult j^ Re Hinds, 5 Whart. 13S, 34 A:"d fsf-'s -de'"; StaUings,'; He.sk. ,s; Beers v. St. John .6 Conn 3 Rayn^ond v. White, 7 Conn. 369; Conrad v. Sa«maw Minin, Co S4 >J «=h. 249, S2 Am. Rep. 817; Uobschuetz v. Holhday, 8. 11. ^;;: Snnev v. Watklns, 13 Mo. .9. ; "arkness v. Sears. 26 Ala. 493- ^- im Dec 743; Holmes v. Tremper, 20 Johns. 29, n Am. Dec. .39. § 32. Same— Domestio fixtures. GAFFIELD v. HAPGOOD. [17 Pick. 193; 28 Am. Dec. 290.] Supreme Judicial Court of Massachusetts, 1835. Putnam T — The fireframe was without doubt personal property before it was fixed to the freehold. But afterward it became a part of the house, and would have passed by a deed of the house as a door or window of the house would have nassed provided there was no exception in the deed to the con- trarv ' But although it is to be considered as a fixture, yet the lessee during the continuance of his lease might have removed it Lawton V. Lawton, 3 Atk. 16, in notis. But he must remove it during the term. He can not lawfully do it afterward. In Lee v. Risdon, 7 Taunt. 1S8, Gibbs, C. J., says, unless the lessee uses the privilege of severing fixtures durmg the term he can not afterward do it ; adding, "and it never was heard of that trover could be afterward brought." While it remained fixed to the freehold, it is clear that if one had unfixed and taken it away at one time, it would not have been a felony, but a trespass. The case of Penton v. Robart, 2 East, 88, might seem to recognize the right of the tenant to remove a fixture after the expiration of the term. That was a trespass for breaking a close and removing the bu.ld.ng. I was brought by a landlord against the tenant. The defendan made no defense to breaking and entering the close, and the plaintiff recovered a shilling for that, but the defendant pleaded a justification for removing the building as set forth m the declaration, that it was a building erected by h.m on the premises for the purpose of carrying on his trade, and that he 154 SOMK PECULIAU CLASSES OF PERSONAL PKOPKKTY. stiU continued in possession of M. frenns.. atthc ^ me when etc The justification was held sufhc.ent. The relat.on ot 1 ndlord and tenant must have been considered as havn.. con- ned, and .. stiU cistin., in respectto the ^^-^ j--^ ; notwithstanding the first term had exp.red. ^ e cle, ncU , • it seems to me, might and ought to have pleaded the gencial L; Ts to breaking and entering the close and a 3ust.hcat.0n as '" If the tture should not be removed during the term^, and the tenant should quit, and the landlord take l---^" f ™^: the law is very clear that the fixture becomes a part o the free hold, and that the party who was tenant can not legally take .t away afterward. . , .,, And there are no facts stated in the present case wh.ch w.ll vary this well established rule of law. The circumstance that the owners of the estate offered .t for sale with a reservation of the fireframe for the tenant, who was hen n possession, is of no avail; because the sde was not 'a e The tenant sold the fireframe to the plaintiff on the day ZL he left the premises. The ve..dee could ..ot be .a better situation than the tenant was. He m.ght, ll^l'^ snid have severed the frame from the ch.n.ney wh.le h.s t^n- .' y continued, but he left the premises, with the frame attached .'fixed by b. ck and mortar to the house. It is very certa.n ^t thereupon it became the property of the owners of the free- '°There are various annexations to the freehold estate, which if the tenant make them at his own expense, can not be remove by him during the term. As if he puts glass .nto the w.ndows Co litt. 53 - And the reason given is, that the glass ,s become p: t of the house. It shall go to the heir and not to the executor^ L as is said in Herlakenden's Case, 4 Co R. 6^ .f they U^ windows) be open to the tempests and ra.n, waste and put.c- iZon o the fLer would follow. So I apprehend ,t would be f the tenant should shingle the house, or put another story up'on it. Such necessary or even expensive reparat.on or add.- Tn would, at this day, be considered as given to the owner of %utte°\tw has accommodated itself to the exiting advanced state of society; and the tenant may, durmg the term, take )1'K11TY. le time when, le relation of s huvinene/,er Sn.ith. The place was known as -\ oik 8 Garden," a.ul had upon it one building which was used as a saloon, and another called the -'clubhouse." The clul)housc ^^.as built by one Ualdus while occupyinjj as tenant of Sm.th In \nril, I's^o, Iledderich, with the knowledge and consent of Smith, purchased the clubhouse and fixtures of Baldus, paymg therefore $7oo-in cash. Contemporaneously with the purchase from Haldus he took a lease of the premises from Smith for a term of years. Whether by the terms of this lease the r.ght to remove the property in dispute was reserved does not appear. During the continuance of this lease Sm.th died and his widow succeeded to his title. At the expiration of the term Iledderich leased the premises trom Mrs. Smith for a term of one ye.ir, at a stipulated rent, pavable monthly. The reut reserved for the new term w.-is different from the old. The lease contained the usual covenants for repair by the tenant and for the surrender of the premises at the expiration of the term without waste. There is ni it no reservation of a right to remove any buildir.g or fixtures an- nexed to or situate upon the land. Some -epairs and alter- ations were made to the club-room by the cenant during his term and he asserted the right to remove it and the fixtures which he had purchased from B..ldus. Whether the budding wa-. so annexed to the freehold as to become part of it, or whether it could be removed without injury to the reversion, were propositions asserted on one hand and denied on the other, but as the finding of the court was for the plaintiff it must be assumed here that it was so annexed. That a tenant who for the better enjoyment of the leasehold erects thereon buildings may at any time before the right of enjovment ceases remove such buildings, if the removal can be accomplished without permanent injury to the freehold, is well settled. It is equally well settled that if he neglects to remove them during his rightful continuance in possession, unless his right to do so afterward is reserved by agreement with the Ituidlord, he is presumed to have abandoned them and his right PEIITV. ft, the result y\\. her deceased m as "Volk's vas used as a he clubhouse ant of Smith, ind consent of ialdus, paying li the purchase m S-nith for a lease the right ved, does not »mith died and d the premises stipulated rent, new term was isual covenants if the premises ^here is in it no or fixtures an- lairs and alter- lant during his and the fixtures ber the building le part of it, or > the reversion, denied on the • the plaintiff it of the leasehold ■ore the right of I removal can Ue freehold, is well gleets to remove ssion, unless his ement with the lem and his right HEDDEniClI V, SMITH. »57 ceases. Cromic v. Hoover, 40 Ind. 49; Allen v. Kennedy, 40 Iiul. 142; Hamilton v. Huntley, 78 Ind. 521; s. c, 41 Am. Rep. S93". Gritlin v. Ransdell, 71 Ind. 440. Assuming that the tenant had the right to remove the build- ing and the fixtures during the continuance of his first term, the question still remains, what was the effect of his taking a new lease upon different terms from Mrs. Smith, without reserving any right of removjil. Without (luestion if there had been nothing more than an extension of the old lease upon the same terms, the respective rights of the parties would have remained the same. Tiie acceptance of a new lease upon different terms was, however, the creation of a new tenancy. It would seem that when the new lease was made it was a lease of the whole estate as it then existed, including the clubhouse now in dispute, with whatever else was a part of the freehold. This estate the lessee covenanted to maintain in repair and at the expiration of his term surrender up. It results from the terms of the lease, that whatever constituted a part of the freehold, at the time the lease was accepted, must be surrendered at its termina- tion and the lessee will not be permitted to say that part of the premises leased was in fact a trade fixture erected by him under a prtivious lease and that he has the right against the face of his contract to sever and remove it. To permit the tenant to do this would in effect be to permit him to deny the title of his landlord to part of the demised premises; and if he may deny his title to a part, why not to the whole ? The acceptance of the new lease was an effectual surrender of the old, together with the estate and all other rights which the old lease secured to him. Thenceforth he was in as of a new estate, which is to be measured by the condition of things existing when it commenced, and by the covenants, conditions, and reservations contained in the new lease, from which the rights of the parties must be determined and regulated. Upon this subject the elementary writers are agreed. Ac- cordingly the rule is stated by an approved author thus: "But while a tenant may renew a trade fixture at any time during his original term or any renewal thereof, yet although he con- tinues in possession after the expiration of his original term, if he holds under a new lease, in which no provision for the 1 58 SOME PECULIAR CLASSES OF PERSONAL l-ROPERTY. removal of the fixtures is made, he is treated as having aban- doied his right thereto. Wood, Landl. and Ten., section 532. So, also, in Taylor, Landl. and Ten., section 552, the au hor aays: "If a tenant at the close of his term renews his lease, or surrenders it, for the purpose of acquiring a fresh interest in the premises, he should take care to reserve his right to remove such fixtures as he had a right to sever under the old tenancy. For where his continuance in possession is under a new lease or agreemeu^ his right to remove fixtures is determined, and he is in the same situation as if the landlord, being seized of the land together with the fixtures, had demised both to him." The principles above stated are sustained by the adjudica- tion of the courts m the following, among other well considered cases: Loughran v. Ross, 45 N. Y. 792; s. c, 6 Am. Rep. 173; Watriss v. First National Bank, etc., 124 Mass. 571 ; s. c, 26 Am. Rep. 694; Jungerman v. Bov.;e, 19 Cal. 3:4. ' It results that the judgment of the Marion superior court was right, and it is accordingly affirmed with costs. Judgment afiirmed. CoNSULT-Darrah V. Baird, loi Pa. St. 265; Dostal v. McCaddon, ,5 Iowa 318; Davis V. Buffum, 51 Me. 160; Beckwith v. Boyce, 9 Mo. 560; Watrics V. First Nat. Bk., 124 Mass. 571, 26 Am. Rep. 694; Loughran v. Ross, 45 N. Y. 792, e Am. Rep. 173; Marks v. Ryan, 63 Cal. 107; Powel, V. McAshan, 2S Mo. 70; Walsh v. Sichler, 20 Mo. (App.) 374- i/om ERTV. wing aban- icction 533. the au hor lis lease, or -J interest in it to remove jld tenancy, a new lease rmined, and g seized of ith to him." le adjudica- 1 considered 5 Am. Rep. s.57i;s. c, or court was »nt affirmed. VIcCaddon, 35 ce, 9 Mo. 560; ; Loughran v. il. 107; Powel, 374- CSAPTER IV. THE MODES OF OBTAINING TITLE TO PERSONAL PROPERTY. I. BY ORIGINAL ACQUISITION. (a) occupancy. 5 34. Original occupancy in general. HICKEY V. HAZARD. [3 Mo. App. 480.] Court of Appeals of M. nri, 1877. Bakewell, J.— The plaintiffs state in their petition that they are copartn-rs and that defendants are copartners; that on Jan- uary 13 1875, plaintiffs owned and were in possession of one thousand tons of ice, worth $2,000; and that defendants vio- lently and wrongfully drove plaintiffs and their servants off, and unlawfully took and carried away said ice, and converted the same to their own use to the damage of plaintiffs $2,500, for which they ask judgment. The answer of defendants denies all the material allegations of the petition. On the trial the plaintiffs introduced evidence tending to show that in January, 1S75, they had a contract with Wainright & Com- pany, of St. Louis, to deliver thera ice at $1.75 per ton ; thatfor the purpose of fulfilling that contract, plaintiffs, during a hard frost, selected a spot on the Mississippi river opposite the foot of Chouteau avenue, in St. Louis, and on the eastern side of the stream, the ice being at that time gorged in the river, which was favorable to the making of good ice, the water oeing clear, and owing to the eddy and slack water there, the character of the ice forming being of a good quality; that the mass of the gorged ice in the river was utterly worthless, but that there (159) li.«? J ,6o MODES OF OBTAINING TITLE TO PERSONAL PROPERTY. were, here and there along the I!U::ois bank, patches of ice which, with proper attention, could be made ^fj^^^^f;^^ f value; that so soon as the ice would bear, plamt.ffs staked ou their claim, marking it with stakes, and plowing all around it with a snowplow a line about three hundred and s.xty feet m extent, thus inclosing a triangular patch of clear ice, the base of the triangle being about sixty feet; that plamt.ffs engaged a flatbftat on the spot to remove this ice and employed a body of men to watch it day and night, who kept it constantly swept and free from skaters; that otherwise the ice would have been spoiled for mercantile purposes from sand and drift-snow blow- ing upon it; that they retained by themselves and their bards, constant, actual possession of this piece of ice for about two weeks, and up to the date of the wrongs complained of, and expended in this work about $239' ^nd thus gave to this piece of ice considerable commercial value; that the ice at the date of the trespass was about a foot thick and worth about $i per ton as it lay; that plaintiffs then had it surveyed and measured, and found it contained about six hundred tons; that the claim was recognized as plaintiffs' by the neighboring bargemen and persons on the nearest bank, and that plaintiffs had obtained the written consent of a man residing on the bank opposite this ice to cut ice in front of his premises; that about January 13, and as soon as the ice was ready to cut, one of the defendants armed with a pistol and accompanied by about fifty men in his employ armed with clubs and ice picks, by threats and violence drove plaintiffs and their hands from the ice in spite of the remonstrances and resistance of plaintiffs and their men-one of defendants declaring that he would have the ice if it cost $1 000 or a life; that a shot vv .s fired; that plaintitfs were overpowered by a force very greatly superior to their own and compelled to retire; that one of plaintiffs at once proceeded to Belleville to institute legal proceedings to re-,tra.n defendants from cutting this ice, but did not succeed hi getting proper serv- ice or service in time: and that defendants, with their hands, proceeded at once to cut up this area of ice which had been occupied by plaintiffs and carried the same away and stored it. These facts were testified to on behalf of plaintiffs by a large number of witnesses. )PERTY. HICKEY V. HAZARD. i6i ches of ice considerable ; staked out 11 around it iixty feet in !, the base of 5 engaged a ayed a body stantly swept d have been :t-snow blow- their bands, 3r about two ained of, and to this piece ; at the date about $1 per md measured, hat the claim jargemen and had obtained : opposite this t January 13, :he defendants fty men in his ts and violence n spite of the heir men — one ! ice if it cost plaintiffs were their own and ;e proceeded to am defendants ing proper serv- ith their hands, k-hich had been y and stored it. ntiffs by a large At the close of plaintiffs' case, defendants asked an instruc- tion in the nature of a demurrer on the evidence, whicii wa? given by the court, and plaintiffs took a nonsuit. The coui c refused to set the nonsuit aside and plaintiffs appealed. We do not know why plaintiffs were not allowed to go to a jury with their case. Their testimony clearly showed the com- mission of a highhanded outrage in violation of plaintiffs' rights. If there were no remedy for such a wrong as this, our boasted civilization would be a farce and men would be left to contend like wild beasts for the rights of person and prop- erty, and each weaker individual would be completely at the mercy of his stiperi"' savage. We think that plaintiffs had an appropriate iciiedy, and should have recovered on their evi- dence. Instances yet remain where, fiom the nature of the thing, it is necessary to resort to the n j'Mral i.itle of occupancy, as firm a title as any other when it is the appropriate one. A man may have by occupancy a qualified property in goods of the most figurative character — in the elements themselves of fire, air, light, and water; an 1 v/ben disturbed in his actual possession and use of them, nia^ n >"r:tain his action and recover damages. Waifs and treasure trove belong to the first one who takes pos- session. Even where there is a common right, as to fish in the sea and public waters, one disturbed in the previous, actual occupation and exercise of the right will be protected by the law; for here the doctrine of prime occupancy will literally apply, and when one is in the exercise of a common right, another may not interfere to expel and disturb him. All rivers and navigable streams belong to the public and the right to fish in them is common to all. Every person has a right to take fish found on the sea shore, and to dig for shell fish below high water mark. Tl\e right to take sea weed grow- ing or accumulating on the bed of a navigable river is also in the public. 9 Conn., 38; 5 Day, 32 ; 4 Burr, 2162. These acknowledged principles of the common law applied to the ptculiar circumstances of this case make it perfectly clear that the plaintiffs here had rights which the law will recognize and protect. Whilst the jurisdiction of the state of Missouri is declared by the constitution of 1S65 to be concurrent with that of I62 MODES OF OBTAINIXG TITLE TO PEUSONAI. PROPERTY. Illinois over the Mississippi river so far as that stream forms a con^mon boundary between the states, that r:ver . commo highway and free to the citizens of the state and of each state of the Union and of the United States. The soil under the Mississippi river does not belong to the riparian proprietor. By virtue of its size and character, and of pub acts, laws and treaties, the Mississippi river ,s a naw- Tabll stream ..n.l the soil under it, ./ //«.« -^^'^Jt^";: the states respec. ely between which it runs. 15 How- 4-6, a owa X. The common law doctrine, or what :s declared to L the common law doctrine in Blackstone and some ate .vritevs on the common law, that a river ,s n-'^;^ «^ ^ ^^ far as the tide flows doe. not apply to large navigable sf.eams in the United States. 14 Serg. & R. 71. Whilst we assert these recognized principles we do not do so because in this case any question arises, or can «--' ° ^^^ oa.s to realty. Cutting ice on a navigable stream in such :;:; : Lt to interfere with the use of its waters for commerce o navi.mtion or any use to which the stream may be put by tic general" public, is not a trespass, though the land beneath belongs to the tate and the ice be cut without a license from the pr'op^tor of the soil. It is not to be likened to cutting down trees on the public domain, or cutting ice on a pond on public or private p^perty. The surface of the "-- f- <> all . and in the water itself, whether in its running state or con- eealed there can be no property except that aenved from pos- festn The- ice is not permanently attached to the soil hough the edges of the mass may rest upon it. It in no X depends directly upoa the soil even for support, though Tendered temporarily motionless by its mass or other circum- ances If trees in a nursery, though drawing nutrition from he so , are not a part of the realty-and, as between lessor Ind lessee they are not-much less can ice on the bottom of a :: iSle'sfreL, though temporarily fixed in position by ^ "orge or otherwise, be considered a part of the soil. It is no Tore realty than is a log of driftwood jammed against the '%V^t^.1^rll^n.,or^^^^^ of the ice and give it a com- JcTal value, derived almost wholly from the labor bestowed "pont, is a right which may be assimilated to the right of lOPERTY. ream forms a io a common of each state belong to the iractcr, and of ^'cr is a navi- ',a.e, belongs to 15 How. 426; is declared to id some later ngable only as liable streams ve do not do so arise, of trcs- eam in such a 3 for commerce y be put by the ! land beneath : a license from sned to cutting ;e on a pond on B river is free to ing state or con- jrived from pos- ted to the soil on it. It in no support, though jr other circum- g nutrition from s between lessor 1 the bottom of a in position by a le soil. It is no imed against the nd give it a com- le labor bestowed d to the right of HICKEV V. HAZARD. 16,^ reclaiming animals wild by nature. These can only be re- claimed by actual possession. 7 Johns. 16. The right to appropriate such property does not depend entirely upon the place in which it is found; as to all inanimate o))jects an absolute property in possession may be acquired in them. And, as to animals ferae naturae a qualified property may be acquired by taming them. If defendants had actual informa- tion of the appropriation and ownership of this defined strip of clear ice, they can set up no greater claim to it because found on its native element, than they could to tame pigeons in the air, or to a domesticatud deer on a mountain. And this would be true had plaintiffs not been actually on the ice by them- selves or their servants, at the time of thie trespass, since they had staked out their claim and plowed a deep cut all around it. If the action of plaintiffs in staking off this ice interfered in any degree with the common right of using the stream, their possession must be held undoubtedly to be subservient to the public use. But that is not pretended to have been the case; and defendants did not interfere to abate an alleged nuisance, but to appropriate another man's goods. The staking out of this ice interfered with no purpose of business or pleasure. To use the language of Judge Nelson in a somewhat similar case, Fleet V. Hegeman, 14 Wend. 46, "the case presents a deliberate and wanton violation of property acquired by the industry and care of another under pretext of exercising a right in common, wliich defendants must have known to be fruit- less." (DefendarHs appropriated this ice, apparently, o^ the theory that it was common property and free to all and to be appropriated specially by none.) "We certainly should have regretted if the law had given countenance to such depreda- tions, and we are rejoiced to be able to declare them a gross violation of law— as they are of the first principles of justice." Plaintiffs had sufficient property in this ice to enable them to maintain trespass Possession is sufficient to enable the pos- sessor to maintain trespass. Pr ^'^ of actual possession by the plaintiff at the time of the trespass in all cases suffices to main- tain the action against a mere wrongdoer, a naked trespasser, who shows no title. The judgment of the circuit court is reversed and the cause remanded. The other judges concur. See note to Iliggins v. Kusterer, ante, p. 92. I64 MODES OF OBTAINING TITLE TO PERSONAL PROPERTY. § 35. Same-Capturing wild animals. PIERSON V. POST. [3 Caines, 175, 2 Am. Dec. 264.] Supreme Court of Nctv Tork, 1805. Post was engaged in hunting, chnsing, and pursuing a fox wi^his dogs, when Pierson, knowing this to be so and m s.ght Tf Po';; kilfed and carried it off. Post sued for damages and had a verdict. Tompkins, J—This cause comes before us on a return to a certiorari directed to one of the justices of Queens county The question submitted by the counsel m th.s cause for our determination is, whether Lodowick Post, by the pursuit with hi hounds in th; manner alleged in his declarat.on. acquired siTch a right to, or property in, the fox, as will sustain an action against Pierson for killing and taking him away. ^The cause was argued with much ability by the counsel on both sides, and presents for our decision a novel and nice ques- tion It is admitted that a fox is an animal/.r^. naturae, and that'property in such animals is acquired by occupancy only These admissions narrow the discussion to th- simple question of what acts amount to occupancy, applied to acquiring right to wild animals. . If we have recourse to the ancient writers upon general prin- ciples of law, the judgment below is obviously erroneous, Justinian's Institutes, lib. 2, tit. i, s. 13, and Fleta, lib. 3, c^. p 17., adopt the principle that pursuit alone vests no propeity oi right in the huntsman; and that even pursuit, accompanied with wounding, is equally ineffectual for that purpose, unless the animal be actually taken. The same principle is recognized by Bracton, lib. 2, c. 1, p. §• , Puffendorf, lib. 4, c 6, s. 2 and 10, defines occupancy of beasts fera.cnaturaeX.o be the actual, corporal possession of them, and Bynkershoek is cited as coinciding in this definition It is indeed with hesitation that Puffendorf affirms that a wild beasr mort..lly wounded, or greatly maimed, can not be fairly .nter- cepted by .nnother whilst the pursuit of the person inflicting PROPERTY. pursuing a fox so, and in sight r damages and )n a return to a ens county. s cause for our the pursuit with iration, acquired sustain an action y the counsel on el and nice ques- rac naturae^ and occupancy only, simple question :o acquiring right pon general prin- iously erroneous, Fleta, lib. 3, c. 2. vests no property 5uit, accompanied jurpose, unless the le is recognized by ines occupancy of possession of them, is definition. It is 5 that a wild beasf not be fairly inter- e person inflicting PIERSOX V. POST. 16: the wound continues. The foregoing authorities are decisive to show that mere pursuit gave Post no legal right to the fox, but that he became the property of Pierson, who intercepted and killed him. It therefore only remains to inquire whether there are any contrary principles, or authorities, to be found in other books, which ought to induce a different decision. Most of the cases which have occurred in England, relating to property in wild animals, have either been discussed and decided upon the principles of their positive statute regulations, or have arisen between the huntsman and the owner of the land upon which beasts y^^ac naturae have been apprehended ; the former claim- ing them by title of occupancy, and the latter ratione soli. Little satisfactory aid can, therefore, be derived from the English reporters. Barbeyrac, in his notes on Puffendorf , does not accede to the definition of occupancy by the latter, but, on the contrary, aflirms that actuat bodily seizure is not, in all cases, necessary to constitute possession of wild animals. He does not, however, describe the acts which, according to his ideas, will amount to an appropriation of such animals to private use, so as to exclude the claims of all other persons, by title of occupancy, to the same animals ; and he is far from averring that pursuit alone is sufficient for that purpose. To a certain extent, and as far as Barbeyrac appears to me to go, his objections to Puffendorf s definition of occupancy are reasonable and correct. That is to say, that actual bodily seizure is not indispensable to acquire right to, 0/ possession of, wild beasts ; but that on the con- trary, the m irtal v/ounding of such beasts, by one not aban- doning his pursuit, may, with the utmost propriety, be deemed possession of him; since, thereby, the pursuer manifests an unequivocal intention of appropriating the animal to his indi- vidual use, has deprived him of fiis natural liberty, and brought him within his certain control. So, also, encompassing and securing such animals with nets and toils, or otherwise inter- cepting them in such a manner as to deprive them of their natural liberty, and render escape impossible, may justly be deemed to give possession of them to those persons who, by their industry and labor, have used such means of apprehending them. Barbeyrac seems' to have adopted, and had in view in l66 MOPi.o OK OBTAINING TITLE TO PERSONAL PROPERTY. his notes, the more accurate opinion of Grotius, with respect to occupancy. That celebrated author, lib. 2, c. 8, s. 3, p. 309, speaking of occupancy, proceeds thus: ^^Rcquirihir autemcor- f oralis quacdam posscssio ad dominium adif>isccndum ; atqtte idea, vulnerassc non sufficUr But in the following section he explains and qualifies this definition of occupancy : ''Sed fos- scssio ilia fotcst 7ion solis manibus, scd instrumcntis, ut dcci- fulis, retibus, laqucis dtim duo adsint: frimum ut ipsa instru- mciita sint in nostra potcstate, dcinde ut fera, ita inclusa sit, ut exire indc nequeat." This qualification embraces the full extent of Barbeyrac's objection to Puffendorf's definition, and allows as great a latitude to acquiring property by occupancy as can reasonably be inferred from the words or ideas expressed by Barbeyrac in his notes. The case now under con- sideration is one of mere pursuit, and presents no circumstances or acts which can bring it within the definition of occupancy by Puffendorf , or Grotius, or the ideas of Barbeyrac upon that subject. The case cited from 11 Mod. 74-13O' I t^^'^^^ clearly distm- guishable from the present; inasmuch as there the action was for maliciously hindering and disturbing the plaintiff in the exercise and enjoyment of a private franchise ; and in the report of the same case, 3 Salk. y. Holt, Ch. J., states that the ducks were in the plaintiff's decoy pond, and so in his possession, from which it is obvious the court laid much stress in their opinion upon the plaintiff's possession of the ducks ratione soli. We are the more readily inclined to confine possession or occu- pancy of beasts /emc naturae, within the limits prescribed by the learned authors above cited, for the sake of certainty, and pre- serving peace and order in society. If the first seeing, starting, or pursuing such animals, without having so wounded, circum- vented, or ensnared them, so as to deprive them of their natural liberty, and subject them to the control of their pursuer, should afford the basis of actions against others for intercepting and killing them, it would prove a fertile source of quarrels and litigation. However uncourteous or unkind the conduct of Pierson toward Post, in this instance, may have been, yet this act was productive of no injury or damage for which a legal remedy caa 'ROPEUTY. ,vith respect to , s. 3, p. 309, tur autem cor- endutn; atqtic ing section he yr: '■'•Scdpos- entis, ut dcci- ut ipsa instru- ita inclusa sit, braces the full definition, and by occupancy ords or ideas now under con- ) circumstances 11 of occupancy yrac upon that clearly distin- the action was plaintiff in the ind in the report that the ducks possession, from in their opinion one soli. ssession or occu- jrescribed by the rtainty, and pre- seeing, starting, ounded, circum- n of their natural pursuer, should intercepting and of quarrels and duct of Pierson , yet this act was legal remedy caa MANNING V. MITCHEKSON. 167 be applied. We are of the opinion the judgment below was erroneous, and ought to be reversed. Judgment of reversal. CoNSULT-Com. V. Chace, 9 Pick. 15; Goff v. Kilts, 15 Wend. 550; Gilletv. Mason, 7 Tohns. 16; Wallis v. Mease, 3 Kinn. 546; Amory v. Fb-n, ID Johns. lOJ, 6, Am. Dec. 316; Kleet v. liegeman, 18 Wend. 42; Buster v. NewkJrk, 20 Johns. 75; Ferguson v. Miller, i Cow. 244, 13 Am. Dec. 317; Ghen v. Rich, S Fed. Rep. 159. The § 36. Same— Wild animal regaining liberty. MANNING V. MITCHERSON. [69 Ga. 447 ; 47 Am. Rep. 764.] Supreme Court of Georgia, 1882. This was an action for the possession of a canary bird, plaintiff had judgment. Crawford, J.— The questions submitted for our adjudication by this record, and insisted on by counsel for the plaintiff in error, are substantially : (i) Whether such a property right can exist in a canary bird as to make it the subject-matter of a possessory warrant. (2) Whether, even if this be so, such warrant will lie against the husband to recover property in the possession, custody, or control of the wife. (3) Whether the notary public, and ex-officio justice of the peace, did not commit error in his decision in this case, in giving judgment in favor of the plaintiff in the warrant, against the weight of evidence submitted on the trial. I. The law of Georgia is, that to have property in animals, birds, and fishes which are wild by nature, one must have them within his actual possession, custody, or control, and this he may do by taming, domesticating, or confining them. The answer of the ex-officio justice of the peace in this case, the same being a certiorari and no traverse thereof, must be taken as true, and it says, that according to the testimony of all the witnesses the bird in controversy was shown to have l6S MODES OF OnTAlNING TITLE TO PERSONAL PROPEUTV. ;, •- been tamed. It was also testified that it had been in the pos- session of the plaintiff in the warrant about two years; that it knew its name, and when called by its owner would answer the call : that it had left its cage on one occasion, and, after having been gone a day or two, returned ; that on the twenty-seventh day of December, before the preceding New Year's day, it was missing from its cage, and on the latter day it was received and taken possession of by the defendant, who had kept it in con- finement ever since. Under this evidence, there does not seem to be any question of surticient possession and dominion over this bird to create a property right in the plaintiff. To say that if one has a canary bird, mocking-bird, parrot, or any other bird so kept, and it should accidentally escape from its cage to the street, or to a neighboring house, that the first person who caught it would be its owner, is wholly at variance with our views of right and justice. To hold that the traveling organist with his attendant monkey, if it should slip its collar, and go at will out of his immediate possession and control, and be captured by another person, that he would be the true owner and the organist lose all claim to it, is hardly to be expected; or that the wild animals of a menagerie, should they escape from their owner's immediate possession, would belong to the first person who should subject them to his dominion. 3. Upon the second question presented for our consideration, we hold that a possessory warrant will lie against any one who receives or takes possession of a personal chattel under a pre- tended claim, and without lawful warrant or authority. To apply this principle to the facts of this case, as they are set out in the answer of the justice, we must say that, though the wife may possibly have had the personal care of the bird in question, yet it is clear that it was in the power, custody, and control of the husband, and was undoubtedly surrendered to the officer by his authority and direction. So that, really, no question can be legally made on the point here raised, as the possession of the wife was but the possession of the husband. 3. That the justice gave judgment in favor of the plaintiff in the warrant against the weight of evidence, we do not admit. The testimony for the plaintiff was positive and convinc- ing, and the testimony of Robt. Gignilliat, Esq., given in his nOPEUTi'. n in the pos- years ; that it lid answer the I, after having wenty-seventh r's day, it was 8 received and cept it in con- e any question ird to create a e has a canary 3 kept, and it street, or to a ;ht it would be s of right and h his attendant /ill out of his red by another J organist lose le wild animals er's immediate should subject • consideration, it any one who el under a pre- authority. To they are set out lough the wife ird in question, and control of to the officer by question can be jssession of the of the plaintiff ce, we do not ive and convinc- q., given in bis BROWN V. UNITED STATES. 169 place as an attorney, without being sworn, shows that the refusal to return the bird, as stated to him by the defendant himself, was owing more to the otfcnsive manner in which it was demanded, tlian to any claim of right which he set up by ownership or possession. This statement was not denied or controverted by the defendant, though he was a witness in the case. The weight of the testimony appears to be clearly with the plaintiff. Under the law and the testimony there was no error in dismissing the certiorari. Judgment affirmed. Consult— Com. v. Chace, 9 Pick. 15; Goff v. Kilts, 15 Wend. 551; Amory V. F\yn, 10 Johns. 102, 6 Am. Dec. 316. § 37. Goods captured in war. BROWN V. UNITED STATES. [8 Crancii, no; Snow's Cas. Int. L. 263.] Supreme Court of the United States, 1814. The Emtdous, owned by John Delano and others, citizens of the United States, was chartered to a company carrying on trade in Great Britain, one of whom was an American citizen, for the purpose of carrying a cargo from Savannah to Plymouth (England). After the cargo was put on board, the vessel was stopped in port by the embargo of the fourth of April, 181 2. On the twenty-fifth of the same month it was agreed between the master of the ship and the agent of the shippers, that she should proceed with her cargo to New Bedford, where her owners resided. While the ship was lying at New Bedford war was declared (eighteenth of June) ;and in October or November the cargo, consisting of pine timber being put in a salt water creek— not navigable, and on the seventh of November was sold by the agent of the owners and American citizen, to the claimant Armitz Brown, who was also an American citizen. On the nineteenth of April, 1S13, a libel was filed by the attorney for the United States in the district court of Massachusetts against the said cargo as well on behalf of the United States as for and X-JO MODES OF OBTAINMSO TITI.K TO I'KUSONAI. PKOl'KKTV. 5n behalf of John Dch.no and for all others concernc-cl. The attorney had no histructi-.ns from his superior, the prrsuUnt of the r.iited States, but acted at the instance of Delano, the owner of the liuiulous. ^ . The .listrict court dismissed the l.bel. The circn.t court (Stoky,J.). •cvorscd this sentence and condemned the pme timber in enemy's property forfeited to the United States. Ihe claimant appealed to the supreme court. Maushall, C. J.— The material question made at bar is this- Can the pine timber, even admitting the property not to be changed by the sale in November, be condemned as pnze of war? The cargo of the Emulous having been legally acquired and put on board, the vessel having been defamed by an embargo not intended to act on foreign property, the ves- sel having sailed before the war, from Savannah, under a stipulation to reland the cargo in some port of the United States, the relanding having been made with respect to the residue of the cargo and the pine timber having been floated into shallow water where it was secured and m the custody of the owner of the ship, an American citizen, the court can not perceive any solid distinction so far as respects confiscation between this property and other British property found on land at the commencement of hostilities. It will, therefore, be con- sidered as a question relating to such property generally and to be governed by the same rule. Respecting the power of government, no doubt is enter- tained. That war gives to the sovereign full right to take tne persons and confiscate the property of the enemy wherever found is conceded. The mitigations of this rigid rule which the humane and wise policy of modern times has introduced into practice will more or less affect the exercise of this right, but can not impair the right itself. That remains undiminished and, when the sovereign authority shall choose to bring it into opf ion, the judicial department must give effect to its wdl. But until that will shall be expressed, no power of condemna- tion can exist in the court. The questions to be decided by the court are: I. May enemy's property found on land at the commence- ment of hostilities be seized and condemned as « <;cessary consequence of the declaration of war? ^^ IMAGE EVALUATION TEST TARGET (MT-3) 1.0 I.I 1^ IP'M 2.2 kJUt. US IIM 1.8 1-25 111.4 11.6 Photographic Sciences Corporation 23 WEST MAIN STREET WEBSTER, N.Y. 14580 (716) 873-4503 rtiH A % W .w^ CIHM/ICMH Microfiche Series. CIHM/ICMH Collection de microfiches. Canadian Institute for Historical MIcroreproductions / Institut Canadian de microreproductions historiques ^ V «> BROWN V. UNITED STATES. i7t 2. Is there any legislative act which authorizes such seizure and condemnation? Since in this country from the structure of our government proceedings to condemn the property of an enemy found within our territory at the declaration of war can be sustained only upon the law principle that they are instituted in execu- tion of some existing law, we are led to ask: Is the declaration of war such a law ? Does that declara- tion, by its own operation, so vest the property of the enemy in the government as to support proceedings for its seizure and confiscation, or does it vest only a right, the assertion of which depends on the will of the soveriegn power ? The universal practice of foibearing to seize and confiscate debts and credits, the principle, universally received, that the right to them revives on the restoration of peace, would seem to prove that war is not an absolute confiscation of this prop- erty, but simply confers the right of confiscation. Between debts contracted under the faith of laws and prop- erty acquired in the course of trade, on the faith of the same laws, reason draws no distinction, and although in practice, vessels with their cargoes found in port at the declaration of war may have been seized, it is not believed that modern usage would sanctiop the seizure of the goods of an enemy on land, which were acquired in peace in the course of trade. Such a proceeding is rare, and would be deemed a harsh exercise of the right of war. But although the practice in this respect may not be uniform, that circumstance does not essentially affect the question. The inquiry is whether such property vests in the sovereign by the mere declaration of war, or remains subject to a right of confiscation, the exercise of which depends on the national will ; and the rule which applies to one case so far as respects the operation of a declaration of war on the thing itself, must apply to all others over which war gives an equal right. The right of a sovereign to con- fiscate debts being precisely the same with the right to confis- cate other property found in the country must be the same. What, then, is this operation? Even Bynkershoek, who maintains the broad principle that in war everything done against an enemy is lawful; that he may be destroyed though unarmed and defenseless ; that fraud J 72 MOOES OF OBTAININT, TITLE TO PERSONAL PROl'ERTV. or even poison may be employed against him ; that a most unlimited right is acquired to his person and property; admits thai war does not transfer to the sovereign a debt due to his enemy ; and, therefore, if payment of such debt be not exacted, peace revives the former right of the creditor; "because" he says, "the occupation which is had by war consists more in fact than in law." He adds to his observations on this subject, "let it not, however, be supposed that it is only true of actions, that they are not condemned ipo jure, for other things, also, belonging to the enemy, may be conceded and escape con- demnation." Vattel says that "the sovereign can neither detain the per- sons nor the property of those subjects of the enemy who are within his dominions at the time of the declaration." It is true that this rule is in terms applied by Vattel to the property of those only who are personally within the territory at the commencement of hostilities ; but it applies equally to things in action and to things in possession; and if war did, of itself, without any further exercise of the sovereign will, vest the property of the enemy in the sovereign, his presence would not exempt it from this operation of war. Nor can a reason be perceived for maintaining that the public faith is more entirely pledged for the security of property trusted in the territory of the nation in time of peace, if it be accompanied by its owner, than if it be confided to the care of others. Chitty, after stating the general right of seizure, says, "but in strict justice, that right can take effect only on those posses- sions of a belligerent which have come to the hands of his adversary after the declaration of hostilities." (P. 67.) The modern rule, then, would seem to be that tangible prop- erty belonging to an enemy and found in the country at the commencement of war ought not to be immediately confiscated ; and in almost every commercial treaty an article is inserted, stipulating for the right to withdraw such property. This rule seems to be totally incompatible with the idea that war does of itself vest the property in the belligerent govern- ment. It may be considered as the opinion of all who have written on xhs jus belli, that war gives the right to confiscate, but does not itself confiscate the property of the enemy; and their rule goes to the exercise of this right. OPERTY. that a most erty; admits )t due to his ; not exacted, 'because" he s more in fact this subject, ue of actions, r things, also, escape con- Btain the per- nemy who are n." Vattel to the 1 the territory lies equally to if war did, of eign will, vest iresence would an a reason be 5 more entirely he territory of i by its owner, lire, says, "but n those posses- ! hands of his [P. 67.) : tangible prop- country at the ely confiscated; cle is inserted, rty. th the idea that igerent govern- f all who have it to confiscate, he enemy; and BUOWN V. UNITED STATES. ^73 Having thus decided that war gives the right, in accordance with international law, to confiscate enemy's property in the situation of this cargo, but not of its own force, the court next proceeded to inquire whether the constitution or laws of the United States had authorized such confiscation. The constitu- tion confers upon congress the power "to declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water." It is evident, then, that the power to confiscate is vested in congress and that it is not in- cluded in the power to declare war. The declaration of war, therefore, did not authorize confiscation ; and congress had enacted no other law to that effect. Neither is it admitted that the executive, in executing the laws of war, may seize and the courts condemn all property which, according to the modern law of nations, is subject to condemnation. The rule is in its nature flexible. It is subject to infinite modifications; it is not an immutable rule of law, but depends on political considerations which may continually vary. It is a question rather of policy than of law; and like all other questions of policy, it is proper for the consideration of a department which can modify it at will ; not for the con- sideration of a department which can pursue only the law as it is written. It is proper for the consideration of the legislature, and not of the executive or judiciary. The court is, therefore, of opinion that there is error in the sentence of condemnation pronounced in the circuit court in this case, and doth direct that the same be reversed and an- nulled, and that the sentence of the district court be affirmed. Mr. Justice Story, with a 'Tiinority of the court, held that the right of confiscation existing, it was within the power of the executive to enforce confiscation, in -the same manner that the executive established blockades and authorized the capture of the enemy's property at sea, and contraband goods. Consult— Ware v. Hylton, 3 Dall. 199; Mrs. Alexander's Cotton, 2 Wall. 404; Wilson v. Crockett, 43 Mo. 376; Williamson v. Russell, 49 Mo. 1S5; Hanger v. Abbott, 6 Wall. 532; New York, etc., Ins. Co. v. Stathem, 93 U. S. 24; Kershaw v. Kelsey, 100 Mass. f,Cn; The Venus, 8 Cranch, 253; Bentzen v. Boyle, 9 Cranch, 191; The Prize Cases, 2 Black, 671; U. S. V. Moreno, i Wall, hog; U. S. v. Grossmayer, 9 Wall. 71; McKee v. U. S., 8 Wall. 163; Mut. Ben. Life Ins.Co. v. Hillyard, 37 N. J. (L.) 444. 174 MOnKS OF OBTAINING TITLE TO PERSONAL PUOrEllTy. § 38. Goods abandoned by owner. HASLEM V. LOCKWOOD. [37 Conn. 500; 9 Am. Rep. 351.] Sufrcmc Court of Cofinccticut, 187 T. Trover for a quantity of manure. On the trial it appeared that plaintiff, on the cveninj,' of April 6, 1869, gathered into heaps manure lying on a public highway in the borough of Stamford, intending to remove the same to his own lands the next evening. Before noon the next day defendant removed the manure so gathered. The fee of the said highway was in the borough, and neither plaintiff nor defendant had permis- sion from the authorities to remove the- manure, although its removal was beneficial to the health and appearance of the borough. The manure was worth $6. Plaintiff claimed that the manure v 3 abandoned personal property, and became the property of t.ie first possessor, which he became by gathering it into heaps. The defendant claimed that the manure was a part of the realty, and belonged to the owner of the fee of the highway ; and further that if it was personalty the plaintiff had abandoned it by leaving it after having raked it into heaps. The court ruled that the plaintiff had not made out title or right of possession to the mtnure and rendered judgment for defendant. Plaintiff moved for a new trial. Park, J. — We think the manure scattered upon the ground, under the circumstances of this case, was personal property. The cases referred to by the defendant to show that it was real estate are not in point. The principle of those cases is that manure made in the usual course of husbandry upon a farm is so attached to and connected with the realty that, in the absence of any express stipulation to the contrary, it becomes appurtenant to it. The principle was established for the benefit of agriculture. It found its origin in the fact that it is essen- tial to the successful cultivation of a farm that the manure produced from the droppings of cattle and swine fed upon the I EllTY. HASI.EM V. I.OCKWOOD. »75 ; appeared hered into orou^h of lands the t removed vay was in id permis- thoiigh its nee of the d personal isor, which )art of the ; highway ; abandoned 3ut title or Jgment for the ground, 1 property, that it was ose cases is dry upon a Ity that, in , it becomes r the benefit it is essen- the manure d upon the products of the farm, and composted with earth and vegetable matter taken from the lanii, siiould be used to supply the drain made upon the soil in the production of crops, which otherwise would become impoverished iind barren ; and in the fact that manure so produced is generally regarded by farmers in this country as a part of the realty, and has been so treated by landlords and tenants from time immemorial. Daniels v. Pond, 21 Pick. 367 ; Le\vis V. Lyman, 22 Id. 437 ; Kittredgev. Woods, 3 N. H. 503 ; Lasscll v. Reed, 6 Greenl. 222 ; Parsons v. Camp, II Conn. 523; Fay v. Muzzy, 13 Gray, 53; Goodrich v. Jones, 2 Hill, 142; I Washb. on Real Prop. 5, 6. But this principle does not apply to the droppings of ani- t.ials driven by travelers upon the highway. The highway is not used, and can not be used, for the purpose of agriculture. The manure is of no benefit whatsoever to it, but, on the con- trary, is a detriment; and in cities and large villages it becomes a nuisance, and is removed by public officers at public expense. The finding in this case is "that the removal of the manure and scrapings was calculated to improve the appearance and health of the borough." It is, therefore, evident, that the cases relied upon by the defendant have no application to the case. But it is said that if the manure was personal property, it was in the possession of the owner of the fee, and the scraping it into heaps by the plf.hitiff did not change the possession, but it continued as befoi:., and that, therefore, the plaintiff can not recover, for he neither had the possession nor the right to the immediate possession. The manure originally belonged to the travelers whose ani- mals dropped it, but, it being worthless to them was imme- diately abandoned ; and whether if then became the property of the borough of Stamford which owned the fee of the land on which the manure lay, it is unnecessary to determine ; for if it did, the case finds that the removal of the filth would "lie an improvement to the borough, and no objection was made by anyone to the use that the plaintiff attempted to make of it. Considering the character of such accumulations upon highways in cities and villages, and the light in which they are everywhere regarded in closely settled communities, we can not believe that the borough in this instance would have had any objection to the act of the plaintiff in removing a nuisance that affected 176 MODES OF OltTAINlNG TITLK TO PERSONAL PROPERTY. the public hcfilth and the appearance of the streets. At all events, we think the facts of the case show a sufficient right in the plaintifi to the immediate possession of the property as against a mere wiongdoer. The defendant appears before the court in no enviable light. He does not pretend that he had a right to the manure, even when scattered upon the highway, superior to that of the plain- tiff; but after the plaintiff had changed its original condition and greatly enhanced its value by his labor, he seized and appropriated to his own use the fruits of the plaintiff's out- lay, and now seeks immunity from responsibility on the ground that the plaintiff was a wrongdoer as well as himself. The conduct of the defendant is in keeping with his claim, and neither commends itself to the favorable consideration of the court. The plaintiff had the peaceable and quiet possession of the property, and we deem this sufficient until the borough of Stamford shall make complaint. It is further claimed that if the plaintiff had a right to the property by virtue of occupancy, he lost the right when he ceased to retain the actual possession of the manure after scrap- ing it into heaps. We do not question the general doctrine that where the right by occupancy exists it exists no longer than the party retains the actual possession of the property, or till he appro- priates it to his own use by removing it to some other place. If he leaves the property at the place where it was discovered, and does nothing whatsoever to enhance its value or change its nature, his right by occupancy is unquestionably gone. But the question is, if a party finds property comparatively worthless, as the plaintiff found the property in question, owing to its scattered condition upon the highway, and greatly increases its value by his labor and expense, docs he lose his right if he leaves it a reasonable time to procure the means to take it away, when such means are necessary for its removal. Suppose a teamster with a load of grain, while traveling the highway, discovers a rent in one of his bags, and finds that his grain is scattered upon the road for the distance of a mile. He considers the labor of collecting his corn of more value than the property itself, and he therefore abandons it an CO sit th< hi! he If W tin pr ek US( inj be of be ne ( Fe Ro tw Pe pr( wa wh inj IITY. HUTHMACHKR V. HARRIS. 77 At all snt right •perty as ->]e light. ire, even lie plain- :onclition ized and iff's out- e ground If. The aim, and 5n of the )ossession borough ;ht to the when he [ter scrap- tvhere the the party le appro- her place, iscovered, or change bly gone, paratively question, way, and ;, docs he rocure the u-y for its traveling and finds tance of a n of more andons it and pursues his way. A. afterward finds the grain in this condition, and gathers it kernel by kernel into heaps hy the side of the road, and leaves it a reasonable time to procure the means necessary for its removal. While he is gone for his bag B. discovers the grain thus conveniently collected in heaps and appropriates it to his own use. Has A. any remeiiv.^ If he has not, the law in this instance is open to just reproach. We think under such circumstances A. would have a reason- able time to remove the property, and during such reasonable time his right to it would be protected. If this is so, then the principle applies to the case under consideration. A reasonable time for the removal of this manure had not elapsed when the defendant seized and converted it to his own use. The statute regulating the rights of parties in the gather- ing of seaweed gives the party who heaps it upon a public beach twenty-four hours in which to remove it, and that length of time for the removal of the property we think would not be unreasonable in most cases like the present one. We, therefore, advise the court of common pleas to grant a new trial. Consult— McGoon V. Anthony, ii III. 559; Lacrustir.e Fert. Co. v. Ferry Co., 82 N. Y. 476; Smith v. Danville, 51 Me. 359; Wilson v. I^osseau, 4 How. 646. HUTHMACHER v. HARRIS. [38 Pa. St. 491.] Suprsme Court of Pennsylvania, 1861 This was an amicable action of trover and conversion be- tween Rosanna Gardner, administratrix, and Silas Sutton and Peter H. Scovill, administrators of Elisha Harris, deceased against David M. Huthmacher, to try the title to sundry promissory notes, bank notes, gold and silver coin, two silver watches, and a pocket compass, together valued at $3,754.50, which came into the custody of the defendant under the follow- ing circumstances: „S .on.s o. o.TA,.,xo T,T,,r, to pkuso... r„o,..UTV. .. , . 11 .«;-« His wife had died some Elisha Harris died .n J"'^/^^^^;, J\,", ,,,ease he lived four or five years before h.^. Af er ^^^^^^^ ^^_^ entirely -f;'!-\;";:^::;,,:„y "hi administrators and a inventory of h.s effect wakny^^^^^^ ^_^ ^^^ ^^^^^.^^^^^^ ^^"'":frL:e -n'-liishwas foundasnuare bo. of room of his nouse b twelve inches „^!u.c., over by .he »"""";^'™'°;;^° *. o *» bicU wero „„,, b). him oftacl for s*. J- ™" '"°,,^„, Huthmachor for -St.n.n.paiah.bi,.^^^^^^^^^^^^ ,he following aniens »»"»"' ":„?;„;',ij) to ,hj valne vi.., promissory notes »' -■■■°; . P'^™ l^J'J,, „,.,che». of over $3,000, nearly .«*>° •""*;""'' „„„„ „f the facts ..r t:spC= tS: ;e"nrr .L^mic* action in this '""rt;rhrjr.:=r;:::o3^^^^^^^ prevalent that here w ^ „„, ,„.e„,l times made Sr:e:L"t;r Ccr, when offering an article. ^^B.a „po„1t, it may contain the «;! - '-»- ^^ ^„„,.,^„,„ ,,,. ^i-' 1t™t,,: Tthe a^inis^ator on both n the last day) ^^^^ tion to Mr. Harris' money and paper., might be." money, etc., were aeLr/er:;t=°;i*:tr :" tlir ret,;™ reffse. by the defendant before the amicable action was entered. Mi TV. id some le lived eath, an s and a ifinlshed ; box of e inches nd a half li a per- achinery, tide was ! vendue, nds were lachcr for US not to ned in the )ld to the home with t to be of )pcn when ; exposed, o the value watches, of the facts ction in this m idea very ealed about times made aticle, "Bid iderable dis- [1 days of the y) "in rela- vvhere they HUTHMACHER V. HARRIS. 179 ey, etc., were fused by the The defendant's counsel requested the court to charge the jury that if they believed the evidence their verdict should be for the defendant. The court (Conyngham, P. J.) charged that the verdict of the jury under the undisputed facts of the case, should be for the plaintiffs for the value of the articles above mentioned, reserving the point of the defendant's right in law to the articles claimed, to be disposed on the evidence ; the counsel agreeing that judgment should be entered for the defendant /ton obstante veredicto if the law required it; either party to be at liberty to sue out a writ of error. The jury found for plaintiffs $4,500, and on the twelfth of November, i860, the court in a learned and elaborate opinion directed judgment to be entered on the verdict. Woodward, J.— The ground on which we affirm this judg- ment is that there was no sale of the valuables contained in the block of wood which is called, in virtue of its horizontal wheel and upright spindle, a drill machine. Sale, says Mr. Justice Wayne in Williamson v. Berry, 8 How. 544, is a word of precise legal import, both at law and in equity. It means at all times a contract between parties to pass rights of property for money which the buyer pays, or promises to pay, to the seller for the thing bought or sold. That no such contract was made by these parties in respect to the contents of the drill machine we deduce from the agreed facts of the case. The machine itself, and every essential part and constituent element of it, were well sold. The considera- tion paid, though only fifteen cents, was in law a quid pro quo, and the sale, unaffected by fraud or misrepresentation, passed to the purchaser an indefeasible right to the machine and all the uses and purposes to which it could be applied. But the contents of the machine are to be distinguished from its con- stituent parts. They were unknown to the administrators, were not inventoried, were not exposed to auction, were not sold. Of course, they were not bought. All that was sold was fairly bought, and may be held by the purchaser. The title to what was not sold remains unchanged. A sale of a coat does not give title to the pocketbook which may happen to be tem- porarily deposited in it, nor the sale of a chest of drawers a I So MODES OI-- om-AINING TITLE TO PERSONAL rUOPEUTY. title to the deposits therein. In these cases, and many others that are easily inia^jined, the contents are not essential to the existence or usefulness of the thing contracted for, and, not being within the contemplation or intention of the contracting parties, do not pass by the sale. The contract of sale, like nil other contracts, is to be controlled by the clearly ascertained intention of the parties. The argument proceeded very much on the doctrine that equity will in certain cases relieve against mistakes of fact as well as of law ; but if there was no contract of sale, there could be no mistake of fact to vitiate it, and therefore that doctrine has no possible application. Mistake is sometimes a ground of relief in equity; but a man who puts up his wares at auction and sells them to the highest bidder, has no right to relief on the ground that he was ignorant of the value of that which he sold. Such a mistake comes of his own negligence, for it is his duty to possess all necessary know- ledge of the value of that which he brings to market, and Ihe rule is general that if a party becomes remediless at law by his own negligence, equity will leave him to bear the consequences. Nor could these administrators, had they sold the contents, have pleaded, in addition to their ignorance, their fiduciary character, and their possible liability for a devastavit, in defeat of th^ vested rights of the purchaser; for, in respect to the personalty of the decedent, they stood in the dead man's shoes, and were in fact, as they are commonly called in law, his personal representatives. The law cast the personal estate upon them for purposes of administration, and a fair sale made in pursuit of that purpose would confer as perfect a title as if made by a living owner. They, no more than any other vendor, could not set aside such a sale to avert the consequences of their own negligence. But, inasmuch as they did not, in point of fact, sell the valu- ables which are in dispute, these principles, and all the argu- ments drawn from the law of mistake, are outside of the case. If, then, there was no sale and purchase of the contents of the block or machine, how did Huthmacher, when he discovered his unsuspected wealth, hold it? Evidently as treasure trove, which, though commonly defined as gold or silver hidden in the ground, may, in our commercial day, be taken to include the paper representatives of gold or silver, especially )PEUTY. HUTHMACHER V. HARRIS. i8i ■nany othcr8 L'litial to the ir, and, not contracting sale, like nil ascertained very much ieve against i no contract tiate it, and Mistake is in who puts hest bidder, ignorant of comes of his essary know- •ket, and ihe at law by his onsequences. the contents, leir fiduciary vit, in defeat jspect to the man's shoes, I in law, his rsonal estate air sale made :t a title as if m any other consequences sell the valu- all the argu- B of the case. le contents of he discovered reasure trove, silver hidden be taken to rer, especially when they are found hidden with both of these precious metals. And it is not necessary that the hiding should be in the ground, for we are told, in 3 Inst. 132, that it is not "material, whether it be of ancient time hidden in the ground, or in the roof, or walls, or other part of a castle, house, building, ruins, or other- wise. The certain rule of the common law, in regard to treasure trove, as laid down by Uracton, lib. 3, cap. 3, and as quoted in Viner's Abridgment, is, "that he to whom the property is, shall have treasure trove, and if he dies before it be found, his executors shall have it, for nothing accrues to the king unless where no one knows who hid that treasure." The civil law gave it to the finder, according to the law of nature, ami ^ve suppose it was this principle of natural law that was referit d to in what was said of treasure trove in a field, in Matthew's Gospel, XIII, 43. But the common law, which we administer, gave always to the ownf^r if he could be found, and if he could not be, th( to the king, as wrecks, strays, and other goods are ,n;Iven, "w'u.reof no person can claim property." 3 Inst. 132. Hutii- macher, therefore, held the unsold valuables for the persona! representatives of the deceased owner. Several sporadic cases, some of which were highly pn'^cryphal, were mentioned in the argument as affording analogies more or less appropriate to this case, but it is quite unnecessary to discuss them, because if they touch, they do not incumber, the clear ground whereon, as above indicated, we rest our iudg- ment. The judgment is affirmed. Consult — Eads v. Brazleton, 22 Ark. 499, 79 Am. Dec. 88; Wyman v. Hurlburt, 12 Ohio, 81, 40 Am. Dec. 461; The Wurts, Olcott, 49; Baker V. Hoag, 7 N. Y. 555, 59 Am. Dec. 431; Barker v. Bates, 13 Pick. 255, 23 Am. Dec. 678; Proctor v. Adams, 113 Mass. 377, 18 Am. Rep.. 500; Fos- ter V. Juniata Bridge Co., 16 Pa. St. 393, 55 Am. Dec. 506. iSa MODES OF OBTAINIXG TITLE TO PERSONAL PROPERTY. § 39. Lost property-What is and what is not. DURFLE V. JONES. [II R. I. 588; 2? Am. Rep. 52S.] Supreme Court of Rhode Island, 1877. DURFEE, C. J.-The facts in this case are briefly these: In Wl,iS74, the plaintiff bought an old safe and soon afterward nfu-ucted his agent to sell it again. The agent offered to sell Tto the defendant for $ro but the defendant refused to buy it. The agent then left it with the defendant, who was a blacksmith, at his shop for sale for $10, authorizing him to keep his books m it until it was sold or reclaimed. The safe was old-fash.oned, of sheet iron, about three feet square, having a few pigeon holes and a ; ce for books, and back of the place for books a large cr..ck L the lining. The defendant, shortly after the safe was left, uVon examining it, found, secreted between the sheet non Te ior ri the' wooden lining, a roll of bills amounting to $^6 of the denomination of the national bankbuls which have b en current for the last ten or twelve years. Neither the p "ntiff nor the defendant knew the money was there before it was found. The owner of the money is still unknown. The Tfendant informed the plaintiff's agent that he h^f found j, and offered it to him for the plaintiff; but the agent declined U, Htinc that it did not belong to either himself or the plaintiff, Z aSvised the defendant to deposit it where it would be draw- ing interest until the rightful owner appeared. The plaint H Zl then out of the rity. Upon his return, being informed of the ^^ing, he immediately called on the defendant and asked for the mo^ey, but the defendant refused to give i to h.m He hn after taking advice, demanded the return of the safe and sntents, precisely as they existed wh.n P'-^^ >n the d - fendant's hands. The defendant promptly gave up the safe but retained the money. The plaintiff brings this action to vprnver A or its equivalent. The plaintiff does not claim that he acquired, by purchasing the safe any right to the money in the safe as against the owner ; fo he bought the safe alone, not the safe and its contents. See im LOPERTY. >t. fly these : In oon afterward jffered to sell ised to buy it. a blacksmith, ;p his books in l-fashioned, of Tcon holes and s a large crack safe was left, the sheet iron amounting to ills which have . Neither the there before it nknown. The ; had found it, ent declined it, r the plaintiff, vould be draw- The plaintiff informed of the ; and asked for it to him. He of the safe and iced in the de- ve up the safe 5 this action to 1, by purchasing ainst the owner ; ts contents. See DURFEE V. JONES. i«3 Merry v. Green, 7 M. & W. 633. But he claims that as between himself and the defendant his is the better right. The defendant, however, has the possession, and theiefore it is for the plaintiff, in order to succeed in his action, to prove his better right. The plaintiff claims that he is entided to have the money by the right of prior possession. But the plaintiff never had any possession of the money except unwittingly, by having posses- sion of the safe which contained it. Such possession, if pos- session it can be c.illed, does not of itself confer a right. The case at bar is in this view like Bridges v. Hawkesworth, 15 Jur. 1079, 31 L. J. Q. B. 75, A. D. 1851; 7 Eng. L. i^ Eq. 434. In that case the plaintiff, while in the defendant's shop on business, picked up from the floor a parcel containing bank notes. He gave them to the defendant for the owner if he could be found. The owner could not be found and it was held that the plaintiff as finder was entitled to them as against the defendant as owner of the shop in which they were found. "The notes," said the court, "never were in the custody of the defendant, nor within the protection of his house before they were found as they would have been if they had been inten- tionally deposited there." The same in effect may be said of the notes in the case at bar, for though they were originally deposited in the safe by design, they were not so deposited in the safe after it became the plaintiff's safe, so as to be in the protection of the safe as /its safe, or so as to affect him with any responsibility for them. The case at bar is also in this respect like Tatum v. Sharpless, 6 Phila. iS. There it was held, that a conductor who had found money which had been lost in a railroad car was entitled to it as against the railroad company. The plaintiff also claims that the money was not lost but designedly left where it was found and that therefore as owner of the safe he is entitled to its custody. He refers to cases in which it has been held that money or other property voluntarily laid down and forgotten is not in legal contemplation lost and that of such money or property the owner of the shop or place where it is left is the proper custodian, rather than the person who happens to discover it first. State v. McCann, 19 Mo. 349; Lawrence v. The State, i Humph. 128; McAvoy v. Medina, 11 Allen, 549. It may be questioned whether this ,84 MODES OF OBTAINING TITLE TO PERSONAL PROPERTY. distinction has not been pushed to an extreme. See Kincaid V Eaton, oS Mass. 139. But, however that may be, we thmk the money here, ihou-h designedly left in the safe, was not designedly put in the crevice or interspace where it wa^ found, but that being left in the safe it probably slipped or was accidentally shoved into the place where it was found without the knowledge of the ov\ ner and so was lost in the stricter sense of the word. The money was not simply deposited and forgot- ten, but deposited and lost by reason of a defect or insecurity m the place of deposit. The plaintiff claims that the finding was a wrongful act on the part of the defendant, and that, therefore, he is entitled to recover the money or to have it replaced. We do not so regard it The safe was left with the defendant for sale. As seller he would properly examine it under an implied permission to do so, to qualify him the better to act as seller. Also under the permission to use it for his books he would have the right to inspect it to see if it was a fit depository. And, finally, as a possible purchaser he might examine it, for though he had once declined to purchase, he might, on closer examination, change his mind. And the defendant having found in the safe something which did not belong there, might, we think, prop- erly remove it. He certainly would not be expected either to sell the safe to another or to buy it himself without first re- moving it. It is not pretended that h'- used any violence or did any harm to tho safe. And it is evident that the idea of any trespass or tort having been committed did not even occur to the plaintiff's agent when he was first informed of the finding. The general rule undoubtedly is that the finder of lost prop- erty is entitled to it as against all the world except the real owner, and that, ordinarily, the place where it is found does not make any difference. We can not find anything in the circumstances of the case at bar to take it out of this rule. We give the defendant judgment for costs. See cases cited in note to Hamalier v. Blanchard, post. MODES OF OBTAINING TITLE TO PERSONAL PROPERTY. 1S5 LIVERMORE v. WHITE. [74 Me. 452,] Suf rente Judicial Court of Maine, 1883. Appleton, C. J. — This is an action of replevin for certain hides of tanned leather. The plaintiff's only title is as finder of them as lost goods. The verdict being against him, excep- tions were duly filed to the rulings of the presiding justice, which have been very elaborately and ably argued. It is in proof that in 1840, Edward Southwick was then owning and carrying on a large tannery, containing seven hundred and eleven vats, of which the vats in question were part; that he sold the tannery to Southwick and Weeks, who occupied a portion of the vats, not occupying the outside vats ; that Edward Southwick died shortly after his conveyance of his estate ; that the same passed to the Vassalboro* Manuf ac- furing Company, which erected its mills thereon over twenty years ago ; that the defendant is their agent and servant ; that while the company "^re digging to lay a foundation for a brick building in addition to their present erection, the plain- tiff, a servant in their employ, discovered the vats and the leather therein, by virtue of which discovery he claims title thereto. It further appeared that these hides were identified as hides placed in the vats by Edward Southwick, and omitted to be taken when his vats were emptied. I. Upon the question of abandonment the jury were in- structed that if they should "find that the owners, for any reason satisfactory to themselves (at that time) intentionally abandoned these hides, expecting that the first finder, the first explorer or excavator, should take possession and enjoy the property ?nd the benefit * * * with an intention of the owner or agent not to resume possession, and not to claim any control or dominion over them thereafter, finally relinquishing all in- terest in them * • * then these finders, under the rules given, would have a right to the possession as against all persons whatsoever,"— but if they should find that Edward Southwick, or his agent, or • * * "any owner, whoever he may have been, lS6 MODES OF OBTAINING TITLE TO PERSONAL PROPERTY. of these hides, intentionally, carefully, voluntarily, and in the ordinary course of business, placed them there as his property, and they were accidentally or inadvertently overlooked and forgotten, they remained the property of such owner or the heirs of such owner or of his estate to the present time." The instruction is correct. Abandonment includes both the intention to abandon and the external act by which the in- tention is carried into effect. Here the act was one of pres- ervation—the proprietor expending labor upon his property thereby to enhance its value. It was an act which excludes the very idea of abandonment. In McLaughlin v. White, 2 Wend. 405, Chancellor Wal- worth says: "li chattels are found secreted in the earth or elsewhere, the common law presumes the owner placed them there for safety, intending to reclaim them. If the owner can not be found, he is presumed to be dead, and that the secret died with him. In such cases, the property belongs to the sovereign of the country as the heir to him who was the owner; but if they are found upon the surface of the earth or in the sea and if no owner appears to claim them, it is presumed they have been intentionally abandoned by the former proprietor, and as such they are returned into the common mass of things, as in a state of nature." They consequently belong to the finder or first occupant, who thinks fit to appropriate them to his own use. i Bl. Com. 308; 2 Id. 402. Here there was no secreting of the hides; no intentional abandonment, and the estate to which the property belongs is known. The only title of the plaintiff is by finding, but under the circumstances he acquires no right to the property. The civil law recognizes the title by finding, by occupation, which gives property in a thing which previously had no proprietor, ^uod enim ante nullius est, id naturali ratione occH-panti conceditur. Inst. 2, 1, 12. If a thing already had an owner, it is only by dereliction by him that it can be appro- priated by occupation. Dereliction or renunciation properly requires both the intention to abandon and external action. Thus the casting overboard of articles in a tempest to lighten the ship is not dereliction, as there is no intention of aban- doning the property in the case of salvage. Inst. 2, i, 48. Nor im LIVEUMORE V. WHITE. 187 does the mere intention of abandonment constitute dereliction of property without a throwing away or removal, or some other external acts, and herein dereliction of property differs from dereliction of possession, which does not require the second element. "There is this difference between dominion and possession, — that dominion continues after the will to own has ceased, whereas possession ceases with the will to possess." Poste's Gains, 170. By Hadrian's law, when treasure was found by anyone on his own land, it became his property, but if found accidentally on the land of another, one half belongs to the finder, and the other half to the owner of the land. This rule is adopted in the French code. Code Civil Act, 713; MacKenzie's Roman Law, 170. II. Nor can this be deemed treasure trove, which is thus defined in Jacobs' Dictionary. It is "where any money is found hid in the earth, but not lying upon the ground, and no man knows to whom it belongs." Nothing is treasure trove but gold or silver. "It is not treasure trove if the owner can be known. Nor though the owner be dead ; for his executors or .administrators shall have it." Com. Dig. Art. Warp. G. All the elements constituting treasure trove are wanting. Here was no hiding. Here was no secrecy. The owner was known. The deposit was not for concealment, but in the usual and ordinary mode of business. III. This is not a case of lost goods. The owner is shown. They belong to his estate. The title of the finders vanishes when the owner is known. These goods were not lost. The facts negative a loss by the owner. The hides were through carelessness left in the vat. If the fact of their being there was forgotten by the owner, they are none the less his, — and thou.^h forgotten they are not lost. They remain in the vats subject to his control. InMcAvoy v. Medina, 11 Allen, 54S, it was held that placing a pocketbook voluntarily by a customer upon a table in a shop, and accidentally leaving it there or forgetting to take it, is not to lose it, within the sense in which the authorities speak of lost property. "To discover an article voluntarily laid down by the owner in a banking room, and upon a desk provided for such persons having business there, is not the finding of a lost iSS MODES OF OBTAINIXG TITLE TO PERSONAL PROPERTY. article," remarks Wells, J., in Kincaid v. Eaton, 9S Mass. 139. "Property is not lost in the sense of the rule," observes Trunkey, J., in Hamaker v. Blanchard, 90 Penn. 577, "if it was intentionally laid on the table, counter, or other place, by the owner, who forgot to take it away, and in such case the proprietor of the premises is entitled to retain the custody." "The lobS of goods," the court say, in Lawrence v. State, i Humph. 2 38, "in legal and common intendment, depends on something more than the knowledge or ignorance, the memory or want of memory of the owner as to their locality at any given moment. * • * To lose is not to place anything care- fully and voluntarily in the place you intend, and then forget it; 'it is casually and mvoluntarily to part from the possession ; and the thing is then usually found in a place or under circum- stances to prove to the finder the owner's will was not employed in placing it there." The instructions upon the controverted questions were correct. Hides in a vat for the purpose of tanning, though not removed when the other vats are cleared, are not to be deemed aban- doned or derelict,— nor though remaining in the vats for . long period through the forgetfulness of their owner or the ignorance of his representative, are they to be considered lost, so that the finder thereby acquires a title to them. Nor can the finding be deemed treasure trove, for there was no gold or silver hidden, and no hiding. Exceptions overruled. CoNSULT-Huthmacher v. Harris, ante, p. 177; Lawrence v. State, i Humph. 223,34 Am. Dec. 644; Kincaid v. Eaton. 98 Mass. 139; Severn V. Yoran. 16 Ore. 267, 8 Am. St. Rep. 293i McAvojr v. Medina, 11 Allen, 548. riiH MODES OF OBTAINING TITLE TO PERSONAL PUOPERTV. 1S9 § 40. Rights of finder of lost property. HAMAKER v. BLANCHARD. [90 Pa. St. 377, 35 Am. Rep. 664.] Supreme Court of Pennsylvania^ 1^79' Sophia Blanchard was a domestic in a hotel of which the defendant was the proprietor. While thus employed she found in the public parlor three twenty dollar bills. On finding the money she informed defendant and, upon his remarking that he thought it belonged to a certain transient guest, she gave it to him for the purpose of returning it to the guest. It proved that the money did not belong to the guest, and no claim was made to it by anyone. Sophia afterward demanded it of defendant, who refused to deliver it to her. The plaintiff had judgment below. Trunkey, J.— It seems to be settled law that the finder of lost property has a valid claim to the same against all the world except the true owner, and generally that the place in which it is found creates no exception to this rule. But property is not lost, in the sense of the rule, if it was intentionally laid on a table, counter, or other place by the owner, who forgot to take it away, and in such case the proprietor of the premises is entitled to retain the custody. Whenever the surroundings evidence that the article was deposited in its place, the finder h.is no right of possession against the owner of the building. McAvoy V. Medina, ii Allen, 54S. An article casually dropped is within the rule. Where one went into a shop, and, as he was leaving, picked up a parcel of bank notes which was lying on the floor, and immediately showed them to the shop- man, it was held that the facts did not warrant the supposition that the notes had been deposited there intentionally, they being manifestly lost by someone ; there were no circumstances in the case to take it out of the general rule of law that the finder of a lost article is entitled to it as against all persons except the real owner. Bridges v. Hawkesworth, 7 Eng. L. & Eq. R. 4H- I90 MODES OF OBTAINING TITLE TO PERSONAL PROPERTY. The decision in Mathews v. Harsell, i E. D. Smith, 393. is not in contlict with the principle, nor is it an exception. Mrs Mathews, a domestic in the house of Mrs. Barmore, found some Texas notes, which she handed to her mistress to keep tot her. Mrs. Barmore afterward intrusted the notes to Harsell for the purpose of ascertaining their value, informing him that she was acting for her servant, for whom she held the notes. Harsell sold them and appropriated the proceeds, whereupon Mrs. Mathews sued him and recovered their value, with interest from date of sale. Such is that case. True, Woodruff, J., says- "I am by no means prepared to hold that a house serv- ant who finds lost jewels, money, or chattels, in the house of his or her employer, acquires any title even to retain possession against the will of the employer. It will tend much more to promote honesty and justice to require servants in such cases to deliver the property so found to the employer, for the bene- fit of the true owner." To that remark, foreign to the case as understood by himself, he added the antidote: "And yet the court of Queen's Bench in England have recently decided that the place in which a lost article is found does not form the ground of any exception to the general rule of law that the fmder is entitled to it against all persons except the owner. His views of what will promote honesty and justice are entitled to respect, yet many may think Mrs. Barmore' s method of treating servants far superior. The assignments of error are to so much of the charge as instructed the jury that, if they found the money in questioii was lost, the defendant had no right to retain it because found in his hotel, the circumstances raising no presumption that it was lost by a guest, and their verdict ought to be for the plaintiff. That the money was not voluntarily placed where it was found, but accidentally lost, is settled by the verdict. It is admitted that it was found in the parlor, a public place open to all. There is nothing to indicate whether it was lost by a guest, or a boarder, or one who had called with or without business. The pretense that it was the property of a guest, to whom the defendant would be liable, is not founded on an act or circumstance in evidence. Many authorities were cited in argument, touching the rights, duties, and responsibilities of an innkeeper in relation to his re m re O' 01 tl P ii P ii P e r ii c WATTS V. WAUD. 191 guests ; these are so well settled as to he uncontroverted. In respect to other persons than guests, an innkeeper is as another man. When money is found in his house, on the Hoor of a room common to all classes of persons, no presumption of ownership arises. The case is like the Hnding upon the tlooi of a shop. The research of counsel failed to discover authority that an innkeeper shall have an article which another finds in a public room of his house, where there is no circumst.ince point- ing to its loss by a guest. In such case the general rule should prevail. If the finder be an honest woman, who immediately informs her employer, and gives him the article on his false pretense that he knows the owner and will restore it, she is entitled to have it back and hold it till the owner comes. A * rule of law ought to apply to all alike. Persons employed in inns will be encouraged to fidelity by protecting them in equality of rights with others. The learned judge wa? .ight in his instructions to the jury. Judgment affirmed. Consult— Armory v. Delamirie, i Strange, 505; Mathews v. Harsell, 1 E. D. Smith, 393; Ellery v. Cunningham, I Mete. 112; Tatum v. Sharpless, 6 Phila. 18; New Yo.k & R. Co. v. Hawes, 56 N. Y. 175; Bowen v. Sullivan, 62 Ind. 281, 30 Am. Rep. 172; Lawrence v. Buck, 62 Me. 275. As to finding chose in action, see McLaughlin v. Waite, 5 Wend. 404, 21 Am. Dec. 232; Tancil v. Seaton, 28 Gratt. 601, 26 Am. Rep. 380. § 41. Finder's right to reward. WATTS V. WARD. [i Ore. 86; 62 Am. Dec. 299.] Supreme Court of Oregon, 1854. Ward, while crossing the plains, lost two horses which were found by Watts and recognized as being the property of Ward. Watts took possession of the horses with the intention (as he claimed) of delivering them to Ward when he should pay him for his trouble. Watts and his party used the horses for driving cattle, hunting buffaloes, and in a variety of employments con- nected with their position as emigrants crossing the plains. He also allowed another emigrant the use of the horses for 192 MODES OF OBTAINING TITLE TO PERSONAL PROI'ERTY. about two months. The horses both died while in the posses- sion of Watts, one upon the journey and the other the follow- ing winter. The evidence conflicted as to whether they died from sickness or hard usage. The jury were instructed sub- stantially that Watts had a right to use the horses for the pur- pose of bringing them to Ward, but for no other purpose nor for his own use. They returned a verdict for Ward ; and from a judgment thereon Watts appealed. Williams, C. J. — The instruction of the court, it is said, was erroneous. No doctrine is better settled at common law than that the finder of lost property is not entitled to a reward for finding it, if there be no promise of such reward by the owner. Brinstead v. Buck, 2 Black. 1 1 17 ; Nicholson v. Chapman, 2 H. Black. 254; 2 Kent's Com. 356; 5 Mete. 352. Some of the authorities maintain that the finder of lost property is entitled to recover from the owner thereof his necessary and reasonable expenses in the finding and restoration of said property. Amory v. Flyn, 10 Johns. 102 ; 2 Kent's Com. 356. Other authorities seem to take the ground that the finder has no legal right to anything from the owner for his trouble and ex- pense in finding lost property. Brinstead v. Buck, Nicholson V. Chapman, before cited, appear to stand upon this principle. Chief Justice Eyre, speaking upon this subject in the latter case, says: "Perhaps it is better for the public that these voluntary acts of benevolence from one man to another, which are charities and moral duties, but not legal duties, should de- pend altogether for their reward upon the moral duty of grati- tude." Chief Justice Shaw, in Wentworth v. Day, 5 Mete. 352, says that "the finder of lost property on land has no right of salvage at common law." Where one person gratuitously performs an act of kindness for another, the law, as a general rule, does not recognize the right to a compensation for such act. In the case of Holmes v. Tremper, 20 Johns. 28, it was held that the plaintiff was not entitled to any recompense for services rendered in saving defendant's property from fire, because such services were entirely voluntary, and without any express or implied promise on the part of defendant to pay for them. No person is bound in law to take trouble with property which he fi h ii f( h s- h ti a V li ^ h t; h e ii 1 c t i r i n r e r t t c t f I WATTS V. WARD. I9S finds; and if, without any knowledge of the owner's wishes, he docs incur expense on account of such property, does he not in so doing trust the liberality of the owner rather than the force of law, for it may be that such owner did not desire to have his property disturbed, or, if lost, preferred to find it him- self. Much of the stock in this country is permitted to run at large ; and if every animal lost, or appearing to be lost, can be taken up and the owner thereof legally charged for all trouble and expense thereby incurred, the businesc of finding cattle would certainly become profitable, and pc-^ons might be largely involved in debt without their knowle^'^e or consent. Where a reward is offered for lost property, i.he finder, when he complies with the terms of the offer, has a right to retain the property in his hands until the promised reward is paid to him. Wentworth v. Day, 5 Mete. 352. Persons are apt to offer a reward if they wish to pay for the finding of lost prop- erty. All the authorities make a difference between the find- ing of property lost at sea and the finding of property lost on land. Commercial policy allows salvage in the one case, be- cause there is peril in the finding, and immediate destruction threatens the property ; in the other case there is no peril, and generally no danger that the property will be destroyed. But, if it be admitted that the owner of lost property is bound to remunerate the finder for his trouble and expense in the find- ing, it is certain that such finder can not pay himself as he goes along using the property for that purpose. He can not be per- mitted to judge as to how much his demand for trouble and expense shall be, and then as to how much he ought to use the property to satisfy such demand. The owner has rights in these matters, and must be consulted. Let the property, when found, be returned to the owner, and then the amount and mode of compensation, if any, can be determined. Plaintiffs in this case having treated and used the horses as their own, for their own benefit and gain, de- fendant had a right to charge them with a conversion of the property, and maintain his suit for its value. Judgment affirmed. Consult— Reeder v. Anderson, 4 Dana, 193; Etter v. Edwards, 4 Watts, 63; Marvin V. Flint, 37 Conn. 9; Amory v. Flyn, 10 Johns. 102, 6 Am. Dec. 316; Chase v. Corcoran, 106 Mass. 2S6. '3 194 MOPES S Of onTAINlNO TITI.K TO PEnSONAL IMtOl-bRTV. § 42. Finder's lien for expenses. WOOD V. IMEUSOX. [45 Mich. 313.] Supreme Court of Michigan, i8Sr. On AVES J.-Picrson sued in replevin and obtained judgment, and Woo'd'and Chapman Hied a bill of exceptions and brou,,ht ^.Tor. The subject oi the action was a breastpm found by C Cpman and claimed by Pierso. Many of t^e -ts are no disouted. Pierson lost at liay C.ty, July ib, 1S7S, a smn.l iamond pin, which seems to have separated from the tongue 'Tome «nk. own way. The circumstances of the loss and he Z^Zr in which the body of the pin and tongue became d.s- Tied are left unexplained. The metallic setting was a com- In pattern, and the gem had no peculiarities to fac.htate ^entification by nonexperts. Pierson caused a no Uce to be inserJed in the Tribune newspaper published in the c.ty, of th.s tenor : "LOST. u$35 RKWAUD-LosT.-A diamond pin. The f^mler will be paid the above reward by leavin;; the same at th.s oft.ce. As will be observed, the advertisement neither gave a descrip- tion of the pin nor suggested who offered the reward. More- ov r n .-ansof anylind were provided for show.ng at U. nlw paper office the ownership or identity of the p.n, or fo. rSgany pin which might be P-^^--^^^^ ^;^;,:^;;: contai.ied in the notice, nor was any money left w th vv^.ch to pay the reward, nor any provision whatever made for pay.ng .t *^ Chapman found a pin which was subsequently ascertained to be the^ne in question. His f^rst impression was, when he p eked it up, that it was a cheap trinket, but on second thoug t h decided to show it to a jeweler. Dirt was a^^^-nng to U amf attention was at once drawn to the fact that, although th tongue was wholly missing, the rivet was secure and hrm^y its place. The query naturally arose as to how th.s cond.t.on TV. WOOD V. PIERSOV. '95 idfrment, brou^Mit oiind by s are not , a sma'il e tongue s and the ;ame dis- 18 a com- cilitate its ice to be ty, of this ler will be ice." I a descrip- ■d. More- ving at the pin, or for the claim h which to jr paying it :ertained to s, when he and thought lering to it, ilthough the nd firmly in is condition of the pin and the absence of the tongue might be accounted for. Mut in order to tlnd out wiietiier it had any material value, Chapman took it immediately to Wood, the other de- fendant, he being a jeweler, and was by him told that the stone was a diamond, and tiiat a diamond pin had been advcrtiscvi in the Tribune. On getting this information Chapman went at once to the newspaper otlice and saw Mr. Shaw, the editor and manager, who showed him the advertisement anil informed him who the author was. Mr. Shaw referred him for anything further to Mr. Pierson, and he at once carried the pin to Pierson's store and called for that gentleman. lie was absent. Chapman was going from the city the next morning, and he told a clerk, Mr. Martin, that he had found a pin, and, as he was going away, he would leave it at Mr. Wood's to be identified and returned to the owner. He then went to Wood's, ;md there left it with instructions to give it to the person who should identify it and pay the reward, and to no one else. This was Friday evening, July 26. The next morning he went from the city on business, and only returned the Monday following at noon. During his absence Pierson called on Wood and asked to see the pin in order to identify it, and Wood declined and required him to identify it first. Pierson attempted to do so, but he failed to satisfy Wood, and in the judgment of another jeweler to whom both referred, and who had the advantage or inspecting both the tongue and body of the pin and of comparing them, the physical appearances and indications were strongly against Pierson's claim. In respect to what was said at these interviews there was want of harmony in the testimony. Pierson requested that another jeweler at Bay City, who, he said, had formerly re- paired the pin, and had a plaster cast of the stone and could identify it, might be permitted to see it. But Wood proposed that this gentleman should call with his mould, and he. Wood, could then see for himself whether it fitted or not. The gen- tleman came, but had no cast, and was unable to give a partic- ular description, and Wood declined to show the pin to him. Pierson then proposed that the pin should be sent at his ex- pense for the purpose of identification to Mr. Smith, of Detroit, who, he said, had mounted it. This was declined, and Wood 196 MODES OF OBTAINING TITLE TO PERSONAL PROPERTY. suggested that Pierson should write to Smith for a description, an expedient, he observed, which would be attended with less risk, but th:-, proposal was unacceptable to P.erson The testimony disagreed as to the incidents of the effort jo get the question of identification settled through Mr. .mith, and in regard to what took place between Pierson and Chapman after the return of Chapman on the twenty-ninth. On Tuesday, the thirtieth of July, Pierson sued out the writ of replevin and went with the sheriff to Wood's store to get the pm. It was not produced, and indeed was not then in the store, although the fact was not made known by ^h- Wood. It .s unnecessary to recite the different versions of what took place. On the next morning, Wednesday, the thirty-first, Mr. Chapman carried the pin to Detroit and satisfactorily ascertained at Mr. Smith s that It was the one advertised for by Mr. Pierson. He returned on Thursday, and on Friday, the day after, met the ofbcer and handed the pin to him, with the request to get the reward Pierson refused to pay it, and on giving the usual replevm bond received the pin from the officer. It has seemed propc to go into this detail on account of the singularities of the case. Yet it must not be assumeu that the outline given lends the exact coloring to the transaction which would be perceptible to a jury on hearing the whole testimony. At the first glance every one must admit that as to one feature of the case, at least, there can be no doubt. The facts are con- clusive that the parties dispensed with the newspaper office as a place for doing what should be necessary in consequence of the reward. Pierson in the first place neglected preparations which were incumbent on him as a legal preliminary to holding Chapman to a compliance at that place, and Chapm^an did not insist on performance there. Both parties proceeded on the tacit understanding tha. whatever was to be done should be done elsewhere. So much is too clear to admit discussion, and neither party is at liberty to claim any advantage on account of the omission to transact or perform at the printing office According to the common law, the finder of goods lost on land becomes proprietor in case the true owner does not appear And meanwhile his right as finder is a perfect right «g«>n«t a'l others But if the true owner does appear, whatever right the ender may have against him for recompense for the care and OPERTY. description, led with less I. the effort lo Mr. Smith, nd Chapman On Tuesday, replevin and •WOOD V. PIERSON. 197 pm. It was ore, although IS unnecessary On the next an carried the , Smith's that 2 returned on le officer and t the reward, replevin bond iccount of the umed that the isaction which lole testimony, to one feature ! facts are con- ipaper office as ;onsequence of d preparations nary to holding apman did not )ceeded on the lone should be discussion, and e on account of ng office, f goods lost on Joes not appear, right against all atever right the jr the care and. expense in the keeping and preservation of the property, his status as finder only does not give him any lien on the property. Yet if such owner offer a reward to him who will restore the property, a lien thereon is thereby created to the extent of the reward so offered. This doctrine in favor of a lien in such circumstances is so laid down in Preston v. Nealc, 13 Gray, 322, and .^.horities are cited for it. Among them is the leading case of Wentworth v. Day, by Chief Justice Shaw, reported in 3 Metcalf, 353, and which is approved and followed by the supreme court of Pennsylvania in Cummings v. Gann, 132 Pa. St. 4S4, adopted as correct by Story in his work on Bailments, sees. 121 and 621a. Parsons has given it his sanction Ly incorporating it in the text of his work on Contracts (vol. 3, p. 239, 6th ed.). and Edwards presents it as settled law in his treatise on Bailments, sees. 20, 6S (2d ed.). Under this principle the admission is unavoidable that when Pierson claimed the pin, on the footing of his notice and reward, of Chapman, the finder, who was holding it for the actual owner, it was, as between them, subject to alien in Chapman's favor and ag'-.inst Pierson for the reward. According to the language of the book-:, Chapman was entitled to detain the article from Pierson until the reward should be paid, and was under no legal obligation to relinquish possession to him, or to give it to another, or to allow anything to be done endangering uis right or security. But there was a mutuality of rights. As claimant, Pierson was entitled to a reasonable time and to fair and reasonable opportunity in reference to the nature of the chattel, the existing state of things bearing on the transaction, and the surrounding circumstances, and without impairing Chapman's right as contingent owner, nor his right of lien, nor interfering with his duty to the true ownership which might be subsequently asserted by anothei, lO make such a showing as he could that the property was the same he had lost and advertised, and such evidence as would satisfy a fair and reasonable person of the fact. It was not for Chapman to baffle investigation by any unfair action or inaction, or give way to unfounded and unreasonable suspicion, and then object that the evidence of identification was not sutVicient. Nor was it for Pierson to demand anything which was not fair and just under the circumstances, and need- I9S MODES OF OBTAINING TITLE TO PERSONAL PROPERTY. ful for investigation, and consistent with Chapman's rights and duties, and then make its refusal a pretext for charging injustice, and an excuse for making coses ; and in regard to these and similar matters it was for the jury to say what was the conduct of the parties ; whether it was fair and reasonable or othe"wise ; whether either or both materially deviated from the proper course ; whether the kind of reciprocity the occasion called for was shown or not, and whether Chapman was bound or not to be satisfied of the rectitude of Pierson's claim when the suit was begun. Whether as between the parties and in view of all the con- siderations bearing on their rights and duties, and on the con- veniences and inconveniences of identification growing out of the nature of the property, and bearing on the chances for im- position, and on the fact of Chapman's being liable to account to whoever should at last be found to be actual owner, it was reasonably and fairly due to Pierson to have a personal inspec- tion to enable him to say that the pin was, or was not, his prop- erty, and if he thought it was, then to facilitate his proof, was not a matter of law. It depended on the peculiarities of the case, and was a question for the jury under instructions conform- ing to the principles here explained. For the purpose of judging with what propriety the parties acted, and whether Chapman was guilty of legal fault, the transaction must be contemplated as it was on the thirtieth of July when the action commenced. It is necessary to keep in mind what time had then been taken, and what had been done about identifying the pin, and what evidence Chapman had of the validity of Pierson's claim. That satisfactory evidence was procured afterward by Chapman must not be taken to show that he had fair and reasonable evidence before, or that his prior conduct was unjust. In considering this aspect of the contro- versy, it is necessary to confine attention to the facts and appear- ances manifested up to the time the writ was taken out. The question was then pending and unsettled. The contention touching the riglit of action in the absence of any tender of the reward is of no practical importance on this record. Whether in point of fact Chapman waived or aban- doned the reward itself, would be a question for the jury under proper instructions. Inasmuch as it belonged to Pierson to Ml RTY. ights and injustice, hcse and e conduct the-wise ; le proper called for I or not to e suit was I the cou- rt the con- ing out of es for im- to account ner, it was lal inspec- t, his prop- proof, was ties of the IS conform- the parties fault, the :ieth of July ;ep in mind done about had of the idence was jn to show lat his prior the contro- and appear- out. The ; absence of ance on this :d or aban- e jury under ( Pierson to WOOD V. PIERSON. 199 identify the property, and pay the reward too, it is not reason - able to contend that, because Chapman insisted on the identifi- cation, he therefore waived the reward. The exaction of the first, or even a firm stand on every legal advantage concerning identification, would not imply relinquishment of the other. Unless the reward itself was in fact waived, or there was such behavior on the part of Chapman respecting Pierson's reclama- tion as was tantamount to a denial of Pierson's right and a wrongful detention, it is not perceived that there was any ground for holding that the lien was forfeited. In Isaack v. Clark, 3 Bulst. 306, Lord Coke states the law in this wise: "When a man doth finde goods, it hath been said, and so commonly held, that if he doth dispossess himself of them, by this he shall be discharged ; but this is not so, as appears by 12 E. IV., fol. 13, for he which findcs goods is bound to answer him for them who hath the property ; and if he deliver them over to any one, unless it be unto the right owner, he shall be charged for them, for at the first it is in his election whether he will take them or not into his custody, but when he hath them, one onely hath then right unto them, and, therefore, he ought to keep them safely ; if a man, therefore, which findes goods, if he be wise, he will then search out the right owner of them, and so deliver them unto him ; if the owner comes unto him and demands them, and he answers him, that it is not known unto him whether he be the true owner of the goods or not, and for this cause he refuseth to deliver them, this refusal is no con- version, if he do keep them for him." Lord Coke very clearly enforces the right and duty of the finder to be certain of the true owner before he makes delivery. As he is bound to hold for the true owner, and is liable in case of misdelivery, the law makes it his duty as well as his right, even when there is no reward, to "search out," or, in other language, find the "right owner," or see to it that he submits to no other than the "right owner." Undoubtedly if Chapman's conduct was such that a jury would, under the circumstances of the case, feel satisfied that he was actually perverse and unrea- sonable, and pursued a course which was adopted to baffle fair investigation, instead of maintaining the attitude of a man whose duty it was, in the quaint terms of Lord Coke, to "search out the right owner," it would be just to regard him as having retained the property unlawfully. 200 MODES OF OBTAINING TITLE TO PERSONAL PROl'EUTV. The neglect to tender the reward, if it was still claimed, could not defeat the action. Bancroft v. Peters, 4 Mich. 6.9. The remedy of trover was originally given to enable the loser of roods to recover of the finder, and the principle has ound recognition in one of the provisions of our action of replevm. Comp. L., sec. 6754. The statute expressly refers to a case .^.here one party is found to have a lien, and the other the genera ownership, and the court is required to render such judgment as shall be just. The provision did not escape the attention of the court below. It was mentioned in the charge. The parties respectively ignored the statute concerning lost property and planted themselves on the common law, and hence there seems to be no occasion to notice the former. The charge given by the learned judge was very elaborate. In some essential particulars it seems open to a construction not consistent with the views which are here explained. But it is not needful to specify the observation referred to. It is enough to say now, that whatever may have been intended, the charge as we find it in the record must have been received by the jury as instructing them that the defendants were bound to submit the pin to the personal inspection of the plaintiff on his request, as a safe and proper expedient for the purpose of "searching out the right owner," and they could not have supposed that it was submitted to them to decide acccording to their own judgment of the circumstances whether the defendants ought or ought not to have allowed such inspection. The ques- tion was not for the bench, but for the jury under suitable instructions. . The case has several features which demand a very strict adherence to the rule which restricts the province of the judge to the conveyance of such matters of law to the jury as the case calls for, and assigns to the jury the determination of all matters of fact. No doubt the unusual, if not unprecedented characteristics of the litigation, and the ordinary hurry of a trial, may explain all of the incidents which on careful review appear to be incapa- ble of support. , The result reached is that the judgment must be reversed with costs, and a new trial granted. See note to next case. Mi TY. MODES OK OBTAINING TITLE TO PERSONAL PROPERTY. 20I laimed , :h. 619. he loser IS found eplevin. ) a case : general idgment :ntion of e parties erty and re seems labor ate. struction . But it intended, received tie bound plaintiff purpose not have ording to efendants rhe ques- r suitable 'ery strict the judge ts the case matters of acteristics ay explain be incapa- ■ersed with § 43. Finder's lien for offered reward. WENTWORTH v. DAY. [3 Mete. 352.] Supreme Judicial Court of Massachusetts, 1841. Shaw, C J.— Although the finder of lost property on land has no right of salvage at common law, yet if the loser of property, in order to stimulate the vigilance and industry of others to find and restore it, will make an express promise of a reward, either to a particular person, or in general terms, to any one who will return it to him, and in consequence of such offer one does return it to him, it is a valid contract. Until something is done in pursuance of i! , it is a mere offer, and may be revoked. But if, before it is retracted, one so far complies with it as to perform the labor for which the reward is stipulated, it is the ordinary case of labor donp on request, and becomes a contract to pay the stipulated compensation. It is not a gratui- tous service, because something was done which the party was not bound to do, and without such offer might not have done. Symmes v. Frazier, 6 Mass. 344. But the more material question is whether, under this offer of reward, t'ne finder of the defendant's watch, or the father, who acted in his behalf and stood in his right, had a lien on the watch, so that he was not bound to deliver it till the reward was paid. A lien may be given by express contract, or it may be implied from general custom, from the usage of particular trades, from the course of dealing between the particular parties to the transaction, or from the relations in which they stand, as prin- cipal and factor. Green v. Farmer, 4 Bur. 2221. In Kirkman v. Shawcross, 6 T. R. 14, it was held that where certain dyers gave general notice to their customers that on all goods received for dyeing after such notice they would have a lien for their general balance, a customer dealing with such dyers after notice of such terms must be taken to have assented to them, and thereby the goods became charged with such lien by force of the mutual agreement. But in many cases the law implies a 203 MODES OF OBTAINING TITLE TO PERSONAL PROPEUTV. lien from the presumed intention of the parties arising from he relation in which they stand. Take the ordn.ary case oj e sde of goods, in a shop or other place, .here the part.es are s rangefs to each other. By the contract of sale the prop- ey considered as vesting in the vendee ; but the vendor has a iL on the property for the price, and is not boun to d h it till the price is paid. Nor is the purchaser bound to pay U h goods are delivered. They are acts to be done mutually Ind'simultaneously. This is founded on the legal l-sumpt-o that it was not the intention of the vendor to part w.th hs g ods till the price should be paid, nor that of the P-^- J.^ part with his money till he should recewe the goods. t ti> , nresumption may be controlled by evidence provmg a d.ffe.ent. fntenTS that thi buyer shall have credit or the seller be pa.d m something other than money. , . .^ , ,u^ «.;„„. In the present case the duty of the phunt.ff to pay the st pu- Hted rJ^vd arises from the promise contained in h.s advertise- r^ent That promise was that whoever should return h>s wa ch Zt prnting office should receive twenty dollars. No other im or'pa Of payment was fixed. The natural if not t e ecessary implicrtion is that the acts of performance were to be^u ual and simultaneous; the one to give up the watch on plyTent of the reward, the other to pay the reward on rece>v- LThe watch. Such being, in our judgment, the nature and Wa leff ct of this contract, we are of opinion that the defend- ant on being ready to deliver up the watch had a right to receive the r ward fn behalf of himself and his son, and was not bound o sur luler the actual possession of it till the reward was paid; rndHherefore, a refusal to deliver it without such payment was "1t^rc:::;^e.nt for the loser of the watch to propose his own terms He might have promised to pay the reward at a Xen t - after the watch should have been restored, or m any The manner inconsistent with a lien for the reward on the a tide restored, in which case no such lien would exist. The pe on "storing the watch would look only to the personal fespo- b lity oi the advertiser. It was for the latter to consider wiri^I s ch an offer would be equally efficacious in bringing Wk h s lost property as an offer of a reward secured by a p edge of the property itself; or whether, on the contrary, .t im WENTWORTH V. DAY. 203 would not afford to the finder a strong temptation to conceal it. With these motives before him he made an offer to pay the reward on the restoration of the watch; and his subsequent attempt to get the watch without performing his promise is equally inconsistent with the rules of law and the dictates of justice. The circumstance in this case that the watch was found by the defendant's son, and by him delivered to his father, makes no difference.' Had the promise been to pay the finder, and the suit was brought to recover the reward, it would present a different question. Here the son delivered the watch to the father, and authorized the father to receive the reward for him. If the son had a right to detain it, the father had the same jight, and his refusal to deliver it to the owner without pay- ment of the reward was no conversion. Judgment for the defendant. Consult— Wood v. Plerson, 45 Mich. 313; Cummings v. Gann, 52 Pa. St. 484; Prescott v. Neale, 12 Gray, 272; Wilson v. Guyton, 8 Gill, 213; Amory v. Flyn, 10 Johns. loi, 6 Am. Dec. 316; Baker v. Hoag, 3 Barb. 203, 7 Id. I13; Janvrin v. Exeter, 48 N. H. 83; Fitch v. Snede- ker, 38N. Y. 248; Symmes v. Frazier, 6 Mass. 344,4 Am. Dec. 142; Deslondes v. Wilson, 5 La. 397, 25 Am. Dec. 187. 304 MODES OK OBTAINING TITLE TO PERSONAL rUOPERTV. (n) ACCESSION. § 44. Products connected with real estate-Bmblementa. HENDERSON v. CARDWELL, ante, p. SS. § 45. Products connected with personal estate. When new product arise8.-The young of animals. KELLOGG V. LOVELY. [46 Mich. 131.] Supreme Court of Michigan, 1878. Graves, J.-The circumstances of this controversy are as follows: In October, 1878, the defendant (Lovely) sold the plaintiff (Kelloss) on credit a mare, buggy, and harness tor he a-reed price of $250, and the plaintiff gave h.s note, to- gether with a mortgage on the property, for tho ent.re sum. The mare was with foal, and about the first of June followmg she dropped the colt. On the first of July the mortg.nge be- came due, and, Kellogg failing to pay. Lovely proceeded to t.-ike the propei-ty. There was no dispute about his right to take tlie mare, buggv, and harness, but the parties appear to have dif- ered about the colt. Lovely maintained that the mortgage applied to it, and gave him the same right to the co t tha it did ti the mare, but Kellogg contested this claim and contended that the colt, being the offspring of the mare, was h.s property .„Kl not having been born when the mare was purchased and ihe mortgage given, was not subject to the mortgage. The colt had not been weaned and was running with the „,are, and when Lovely drove her off the colt followed. Lovely soon afterward proceeded to sell the whole property, he colt included, under the mortgage, and we gather ^-m rt.e ase that it was bought in by him through an agent. The whole sum for which the property was struck off was $176, and short- ly afterward Kellogg paid the remainder of the debt. He then instituted replevin against Lovely, before a ]ust.ce of the ^M KELLOGG V. LOVELY. peace, to obtain the colt, and it was seized on the writ and de- livered into his possession. The justice entered a nonsuit against him, and Lovely vvaivin^j return of the colt, the value was assessed at $55, for which Lovely took judgment. An appeal was made, and the circuit court reduced the assessment to $30, and awarded Kellogg $78 costs, and extinguished the former by applying an equal amount of the latter by way of set-off. Thereupon Kellogg sold the colt and brought this action of trespass, counting on the transaction when Lovely took the mare on the mortgage. The justice gave judgment in Kel- 1()"(t's favor for the value of the colt, and Lovely appealed. The circuit judge ruled that there was no evidence of trespass and ordered a verdict for Lovely. It is not certain that the circuit judge was correct in the reason on which he proceeded. But whether he was so or not is unimportant unless the resuU was wrong. The fundamental question in the case relates to the effect on the legal ownership of the colt, of the sale of the mare to Kel- logg and the mortgage back. Li respect to tame and domestic animals, the general rule is well understood, that "the brood belongs to the owner of the dam or mother" (2 Bl. Com. 390), but there are many cases in which the rule is qualified in its application. It has been held, and may be true in special cases, that where the female is hired for a time limited, and has increased during the term, the hirer will be entitled to it and not the general owner. 3 Kent, 361 ; Edw. Bail., sec. 403; Putnam v. VVylcy, 8 Johns. 433; Concklin v. Havens, 13 Johns. 314 ; Hanson v. Millett, 55 Me. 184; Stewart v. Ball, 33 Mo. 154. And so, too, it was decided in Lin- nendoll v. Terhune, that a foal obtained under an agreement, by which the owner of the mare arranged with another person, that if he would put her to horse and pay the expense he should have the foal, became the property of such persons. 4 Johns. 333. It is also laid down by Judge Story that where a thing is pledged its natural increase as accessory is also pledged, and he gives by way of illustration the case where a flock of sheep are pledged, and observes that the young afterward born are also pledged. Bailments, sec. 292; and see Domat, part i,book 3, tit. I, sec. I, art. 7; Kaufm. Mackeldey, book i, sec. 367. In Iowa and Kentucky, and probably in other states, it has been 2„6 MODES OF OBTAINING TlT.-i: TO PERSONAL rnoPEUTV. decided that the young of animals under mortKasc ^'e subject to the mortgage. Forman v. Proctor, 9 B. Mon. 124; lho,pc V. Cowles, 5S loNva, 40S. And no cases to the contrary have been discovered. Perhaps these h,st decisions may have orig- inated in the doctrine that the mortgagee of chattels .sthe .egal owner, and the courts may have considered that m holdu.g the young of mortgaged animals to be subject to the mortgage thev were only applying the general rule which assigns the in- crease to the owner of the mother. But it is useless to specu- late on the subject. The case before the court belongs to a peculiar and excep- tional class, and it may be disposed of without bringing into Cuestion the general doctrine. As previously stated the mare was carrying her colt when Lovely sold her, and the plaintiff not paying anything whatever, gave back at the same momen a ch^Utd mortgage for the entire price, l^l^ere -s no m e of time between the sale and mortgage. Each took effect at the same instant. The whole was substantially one transaction. Now it is a rule of natural justice that one who has gotten the property of another ought not, as between them, to be allow- ed to keep any part of its present natural incidents or accessories ^■ithout payment, and that the party entitled should have the richt to regard the whole as being subject to his claim Ihe oite ought not to suffer loss, nor the other effect a gain, through a mere shuffle, and whatever fairly belongs to the thing m ques- tion, as the young the dam is carrying belongs to her, ought to be as fullv bound as the thing itself, unless, indeed, there are circumstances which imply a different intention. It is not unreasonable to construe the acts of these P-'^'" '^s by these principles, and to consider that when Lovely sold the n.are without receiving anything down, and Kellogg gave back the mortgage for the whole purchase price to be due before the colt, according to the ordinary course of things, would be old enough to be separated from the mare, it operated as ^vell to hoUUhe colt as to hold the mare herself. The intendment ,s ^ fair and just one, that the security was to be so far beneficial to Lovely as to preserve to him the right to claim at the ma- turity of the mortgage the same property he would have had in case he had made no sale. According to this view, there was the same right to the colt as to the mare, and the act of *ii TY. OREOUUY V. STKYKKH. 207 subject Thorpe •y have •e orig- \\e legal holding ortgage, the in- ) specu- A excep- ing into he mare plaintiff, moment ) interval effect at msaction. IS gotten be allow- ccessories have the im. The I, through g in ques- ', ought to there are parties by sold the gave back before the lid be old as well to ndment is • beneficial t the ma- have had iew, there the act of seizure sued for was not a trespass. The result ordered by the circuit judge was therefore correct, and tlie judgment must be aHirmed with costs. Consult— Lewis V. Davis, 3 Mo, 133, 23 Am. Dec. 678; Stewart v. Hull, 33 Mo. 154 ; Putnam v. Wvley, 8 Johns. 432 ; Concklin v. lliivens, 12 Johns. 314; llnsbrouck v. Bouton, 60 Barb. 413; Groat v. Gile, 51 N. Y. 431; Elmore v. Fltzpatrick, 56 Ala. 400; Hull v. Hull, 48 Conn. 250; Buckmaster v. Smith, 22 Vt. 203; Mazelbaker v. Goodfcllow, 64 111. 238; Hanson V. ISIillett, 55 Me. 184; Orser v. Storms, 9 Cow. 687, iS Am. Dec. 543; Winter V. Landphere, 43 la. 471; White v. Storms, 21 Mo. (App.) 2S8. § 46. Where addition is made to old product— With owner's consent. GREGORY V. STRYKER. [2 Denio, 628.] Supreme Court of New Tork, 1846. Beaudsley, J. — The principal controversy in this cause is whether the wagon in question when taken by the defendant belonged to the plaintiff or to Rose. The other points were disposed of by the jury under proper instructions from the court. As the value of the new materials and labor used and em- ployed in repairing or reconstructing the wagon greatly exceeded that of the old materials used in the operation, it was urged that this was really a contract with Rose to make a new wagon, and not for the repair of an old one, and there- fore, as most of the materials were furnished by him, his right of property in the vehicle would continue until its completion and delivery under the contract. No doubt, where a manufacturer or mechanic agrees to con- struct a particular article out of his own materials, or out of materials the principal part of which are his own, the property of the article, until its completion and delivery, is in him and not in the person for whom it was intended to be made. 1 Cowen's Tr. [2d ed.] 2S9; 2 Kent, 361 ; Merritt v. Johnson, 7 Johns. 473; I Chitt. PI. [7 Am. ed.] 3S1 ; Atkinson v. Bell, i 208 MODES ()!• OIlTAINlNfi mi.E TO PKIISOSAL rKDl'lUtTY. 8 Barn. iSc Cress. 377; 2 Chitt. Com. Law, 370. lUit it is cciually clear, as a j,'eiicral proposition, that vviiere tlie owner of ii (lanianeil or worn-out article .lelivers it to anotlier person to l.e repaired and renovated l.y the Uxhov and materials of the latter, the pr.^perty in the article, as thus repaired and im- proved, is all along in the original owner, for whom the repairs were made, and not in the person making them. The agreement in such case is but an everyday contract of bail- ment— /(>aj//o opens facicmii. Story on Dl. [,^1 ed.], sections 431, 433, a; 3 Kent, 5SS. And the original owner, so far from losing his general property in the thing thus placed in the hands of another person to be repaired, ac. ires the right to whatever accessorial additions are made in bringing it to its new and improved condition. Nor am I aware that in this class of cases it is at all im- portant what the value of the repairs, actual or comparative, may be. No case is referred to which proceeds on that dis- tinction, nor anv writer by whom it is adverted to as material. If we adopt this distinction, ivhat shall be its limit? The general property must be in one party to the exclusion of the other, for surely they are not tenants in common in the thmg repaired. Shall we then say that where the value of the re- pairs falls below that of the dilapidated article on which they were made, the original owner has title to the article in its improved condition, and, vice versa, where they exceed it in value, title to the article, as repaired and improved, passes over to the person by whom the repairs were made ? Such a rule would certainly be plain enough, and probably might be applied, without great difficulty, to any particular case. But it would be found to give rise to a variety of questions never heard of in actions growing out of the reparation of decayed or injured articles; and the rule itself, I .m persuaded, has not so much as the shadow of authorit)' .or its support. There are a multitude of instances ir v/iii /h the expense of propt. repairs greatly exceeds the value of the article on which they are made. It is so in the lowly operation of footing an old pair of boots, and not unfrequently in repairing a broken-down carriage. The principle contended for by the defendant is not necessary for the security of the mechanic by whom the repairs are made. He has a lien for his labor and materials, and may retain IITY. onEoonv v. stuykeh. 209 Hut it is le owiKT :r person ;ils of the and im- hom the in. The of bail- , sections ) far from the hands whatever new and U all im- iparative, , that dis- material. lit? The on of the the thing of the rc- k'hich they icle in its s down the rule very broadly, that if a thing is changed into a different species, as by making wine out of another's grapes, oil from his olives, or bread from his wheat, the product belongs to the new operator, who is only to make satisfaction to the former proprietor for the materials converted. 2 Bl. Com. 404. We do not understand this to be disputed as a general proposition, though there are some authorities which hold that in the case of a willful appropriation no extent of conversion can give to the willful trespasser a title to the property so long as th^'e original materials can be traced in the improved article. The distinction thus made between the case of an appropriation in good faith and one based on intentional wrong appears to have come from the civil law, which would not suffer a party to acquire a title by accession, founded on his own act, unless he had taken the materials in ignorance of the true owner and given them a form which precluded their being restored to their original condition. 2 Kent, 363. While many cases have followed the rule as broadly stated by Blackstone, others have adopted the severe rule of the civil law where the conversion was in willful disregard of right. The New York cases of Betts V. Lee, 5 Johns. 348; Curtis v. Groat, 6 Johns. 168; and Chandler v. Edson, 9 Johns. 362, were all cases where the willful trespasser was held to have acquired no property by a very radical conversion, and in Silsbury v. McCoon, 3 N. Y. 378, 385, the whole subject is very fully examined, and Rug- gles, J.,in delivering the opinion of the court, says that the RTY. opriatcd 1 recover [ it ; and by the less, re- ibstantial I can not own vol- id parties not con- on is not I be some ich have lackstone changed another's e product faction to Bl. Com. a general hold that onversion y so long id article, ropriation ippears to er a party ict, unless jwner and jstored to :ases have thers have :onversion k cases of )hns. 1 68; where the perty by a 1, 3 N. Y. and Rug- s that the WETHERBEE V. GllEEN. 119 common law and the civil law agree "that if the chattel wrong- fully taken come into the hands of an innocent holder, who, believing himself to be the owner, converts the chattel into a thinij of different species so that its identity is destroyed, the orighial owner can not reclaim it. Such a change is said to be wrout^ht when wheat is made into bread, olives into oil, or grapes into wine. In a case of this kind, the change in the species of the chattel is not an intentional wrong to the original owner. It is, therefore, regarded as a destruction or consump- tion of the original materials, and the true owner is not per- mitted to trace the identity into the manufactured article for the purpose of appropriating to his own use the labor and skill of the innocent occupant who wrought the change ; but he is put to his action for damages as for a thing consumed, and may recover its value as it was when the conversion or consumption took place." And further on he says of the civil law, with which the common law is supposed by him to har- monize: "The acknowledged principle of the civil law is that a willful wrongdoer acquires no property in the goods of another either by the wrongful taking or by any change wrought iu them by his labor or skill, however great that change may be. The new product in its improved state belongs to the owner of the original materials, provided it be proved to be made from them ; the trespasser loses his labor, and that change which is regarded as a destruction of the goods, or an alteration of their identity in favor of an honest possessor, is not so regarded as between the original owner and a willful violator of his right of property." In further illustration of the same views we refer to Hyde v. Cookson, 21 Barb. 104; Martin v. Porter, 5 M. & W. 351; Wild V. Holt, 9 M. & W. 673; Baker v. Wheeler, 8 Wend. 50S; Snyder v. Vaux, 2 Rawle, 427; Rip- die v. Driver, I3 Ala. 590. It does not become necessary for us to consider whether the case of Silsbury v. McCoon, 3 N. Y. 378, which overruled the prior decisions of the supreme court (reported in 4 Denio, 425, and 6 Hill, 332), has not recognized a right in the owner of the original materials to follow them under circumstances when it would not be permitted by the rule as recognized by the authorities generally. That was the case where a willful tres- passer had converted corn into whisky, and the owner of the 220 MOPKS OK OnTAINING TITLE TO PKIISONAI. PROPERTY. corn was held entitled to the manufactured article. The rule as given by lllackstone would confine the owner, in such case, to his remedy to recover damages for the original taking. Bnt we arc not called upon in this case to express any opinion re- garding the rule applicable in the case of a willful trespasser, since the authorities agree in holding that when the wrong had been involuntary the owner of the original materials is pre- cluded, by the civil law and common law alike, from following and reclaiming the property after it has undergone a trans- foi-mation which converts it into an article substantially dif- ferent. The cases of confusion of goods are closely analogous. It has always been held that he who, without fraud, intentional wrong, or reckless disregard of the rights of others, mingled his goods with those of another person in such manner that they could not be distinguished, should, nevertheless, be pro- tected in his own ownership so far as the circumstances would permit. The question of motive here becomes of the highest importance; for, as Chancellor Kent says, if the commingling of property "was willfully made without mutual consent, * * the common law gave the entire property, without any account, to him whose property was originally invaded and its distinct character destroyed. Popham's Rep. 3S, pi. 2. If A. will willfully intermix his torn or hay with that of B., or casts his gold into another's crucible so that it becomes impossible to distinguish what belonged to A. from what belonged to B., the whole belongs to B. Popham's Rep., ub. supra; Ward v. Ayrc, 2 Bulst. 333." 2 Kent, 364-5; and see 2 Bl. Com. 404; Hart v. Ten Eyck, 2 Johns. Ch. 62 ; Gordon v. Jenney, 16 Mass. 465; Treat v. Barber, 7 Com. 2S0; Barron v. Cobleigh, II N. II. 561 ; Roth V. Wells, 29 N. Y. 4S6 ; Willard v. Rice, II Met. 493; Jenkins V. Steanka, 19 Wis. 12S; Hesseltine v. Stockwell, 30 Me. 237. But this rule only applies to wrong- ful or fraudulent intermixtures. There may be an intentional intermingling and yet no wrong intended; as where a man mixes two parcels together, supposing both to be his own, or, that he was about to mingle his with his neighbor's, by agree- ment, and mistakes the parcel. In such cases, which may be deemed accidental intermixtures, it would be unreasonable and unjust that he should lose his own or be obliged to take and KUTV. The rule *uch case, iifj. Hi't pinion le- respasscr, kronderstadt, 32 Minn. 250; Nesbitt v. St. Paul Ice Co., 21 Minn. 491. § 49. Confusion of goods through fraud. JEWETT V. DRINGER. [30 N. J. Eq. 291.] Court of Errors and Appeals of New Jersey, 1878. A junk dealer by fraudulent collusion with the employees of a railroad corporation obtained large quantities of old iron, etc., at much less than the actual weight or value. On delivery it was thrown indiscriminately on other heaps of old iron, etc., belonging to him, so as to be indistinguishable. The bill was filed by the receiver of the railroad corporation. DoDD, J.— As to Dringer the case is one of fraudulent pro- curing and intermixture of the company's goods with his own. The goods thus procured and intermingled were of different kinds and values, and can not be distinguished as to enable those of one owner to be separated from those of the other. The rule applicable to the case is well settled by authority and in accordance with natural justice. In Luptonv. White, 15 Ves. 433, Lord Eldon states the old law to be, that if one man mixes his corn or flour with that of another and they were of equal value, the latter must have the given quantity; but if articles of different value are mixed, pro- ducing a third value, the aggregate of both, and, through the fault of the person mixing them, the other party can not tell what was the original value of his property, he must have the whole. The observations of Sir William Blackstone are cited in the note pointing out the distinction between the civil law UTY. rsctl, and >ncurrcd. ohns. 34S; Jabcock V. Dec. f,S2; ce Co., 21 PRATT V. nUY.WT. 233 T878. ployces of iron, etc., ilclivciy it iron, etc., ,> bill was ulent pro- i his own. f different to enable the other, hority and tes the old ith that of t have the nixed, pro- u'ough the n not tell it have the e are cited ; civil law and our own law upon this point; the civil law, though giving the aggregate to tlic party who did not interfere in the mixture, allowed the other a satisfaction for his loss. "But our law," says Biackstone, "to guard against fraud gives the entire prop- erty, without any account, to him whose original dominion is invaded and endeavored to be rendered uncertain without his consent." In Hart v. Ten Eyck, 5 Johns. Ch. 108, it is ruled that if a party having charge of the property of others so con- founds it with his own that the line of distinction can not be traced, all the inconvenience of the confusion is thrown upon the party who produced it, and it is for him to distinguish his own property or lose it. If it be a case of damages, damages are given to the utmost value that t'.ie article will bear. The same doctrine is expressed and applied in Providence Rubber Co. V. Goodyear's Ex'r, 9 Wall. 9SS; The Idaho, 3 Otto, 5S6 ; Wooley v. Campbell, S Vr. 169. In the last cited case the language of Justice Depue is, that the doctrine that one mixing hisVotls with those of another so that a separation is impossi- ble, loses his property, is a doctrine that is adopted to prevent fraud. It is never resorted to except in favor of an innocent party as against a wrongdoer. The court ordered that the whole mass be forfeited to the corporation. CoNSULT-Wingate v. Smith, 20 Me. 287; Beach v. Schmultz, 20 111. 1S6; McDowell V. Russell, 37 Pa- St- ''^a; Rvder v. Hathaway, 21 Pick. 20S; The Idaho, 93 U. S. 575! Stephenson v. Little, 10 Mich. 433; Tenkins v. Steanka, 19 Wis. 126, 88 Am. Dec. 675; WiUard v. Rice, 11 Met. 493, 45 Am. Dec. 226; Robinson v. Holt, 39 ^f- H- 5i7, 75 Am. Dec. 233- Allev V. Adams, 44 Ala. 609; Davis v. Krum, 12 Mo. (App.) 279. § 50. Confusion of goods through accident, mistake, or by consent. PRATT V. BRYANT. [20 Vt. 333.] Supreme Court of Vermont, 1848. .The plaintiff, believin- that there was a contract between himself and the defendants for the delivery of a quantity of wood— although in fact no such contract had been concluded— 234 MODES OF OBTAINING TITLE TO PERSONAL PKOPERTY. placed a quantity of wood upon the premises of the defendants, where it was so intermingled with other wood belonging to the (Ufcndants that it could not be distinguished. The defendants, when called upon for payment, denied having contracted for the wood. The plaintiff then offered to take the wood away and the defendants told him he might, but that he must be careful that he did not take away any wood belonging to them. In consequence of the wood being intermingled, the plaintiff was unable to select his wood from the mass and did not take any away, and the wood was all used by the defendants ; but at what time did not appear. Redkield, J. — This does not seem to be such a case of fraud- ulent commixture of goods as to produce a forfeiture on the part of the plaintiff. The rule laid down by Justice Norton in Ryder v. Hathaway, 3i Pick. 298, seems to us to be the true rule upon the subject, — that if the intermixture were inten- tional, but by some mistake of the facts, the property was not lost. That seems to be the present case. The plaintiff supposed he had made a contract of sale; but in fact he had not. This was his innocent mistake. He may therefore recover either his property or the pay for it. He should first show a demand and refusal, unless the defendant have used it, knowing it to belong to the plaintiff, which is not this case. If the defendant use it by mistake or refused to suffer the plaintiff to take it away, — one of which is virtually true in this case, — he is liable in trover ; or if he have sold the property and received money for it, the plaintiff may waive the tort and sustain assumpsit for the money. 3i Pick. 306, citing Bond v. Ward, 7 Mass. 137. But we think no action of assumpsit will lie, unless in a case like the one last put, or when there has been a sale, either express or implied, and that the action of book account could not with the least propriety be extended to a case like the present. The present case, upon the most favorable construction for the pla'':iiff, is the putting of his wood with the defend- ant's, under a mistake of facts, without the fault of the defendant. There was no contract of sale ; but the contrary is expressly found. We are to understand that the plaintiff was not justified in supposing there was any contract of sale closed, for if that were the case it would amount to a contract. IMIATT V. HKYANT. -33 The fault, then, was that of the plaintiff, but not willful or fraudulent, hut negligent. Can the plaintiff, then, be considered in any more favorable light than if he had left his wood upon the defendant's land as a naked deposit, and the defendant had used it without his con- sent. And in no such case could an action of book account be maintained. Nor could such action be maintained upon the defendant's refusal to deliver the wood upon request, or to permit the plaintiff to remove it. This action will never lie for damages sustained by reason of any breach of duty as a bailee, whatever be the character of the bailment. Nor will this action lie to recover damages, which are in their nature the result of a tort. The only ground of recovery here is for the defendant's refusal to allow the plaintiff to take away so much wood as he put there by mistake. This they should have done; but their refusal was a mere tort; and the damages could no more be recovered in this action than in all cases of conversion of personal chattels. There are, in our opinion, strong reasons, in the justice of the case, why this action should not be extended to a case like the present. The commixture is not without the fault of the plaintiff, although not fraudulent in such a sense as to work a forfeiture. In all such cases the c' i- nant will be supposed to be first in fault, in mixing his goods with his neighbor's, and to be wholly conversant of the facts. To allow him, then, to come into court for redress, upon the force of his own testi- mony, and virtually excluding the innocent party, who is not supposed to have equal knowledge of the fact, not having been present at the time of the commixture, will be to allow a party to derive a positive advantage from his own wrong. It is sufficiently favorable to the plaintiff to relieve him from the forfeiture and to allow him to recover upon common law proof. Judgment reversed and judgment for defendants. Consult— As to mistake: Thome v. Colton, 27 la. 425; Weymouth V R. Co., 17 Wis. 550, 84 Am. Dec. 763; Winchester v. Craig, 33 Mich. 205; Smith V. Sanborn, 6 Gray, 134; Davis v. Krum, 12 Mo. (App.) 279; Ryder V. Hathaway, 21 Pick. 298; Stone v. Quaale, 36 Minn. 46; Pear- son V. Inlow, 20 Mo. 322 ; Farwell v. Price, 30 Mo. 587. As to accident: Moore v. R. Co., 7 Lans. 39; Sharp v. U. S., 12 Ct. of CI. 638; Bryant v. Ware, 30 Me. 298; Leonard v. Belknap, 47 Vt. As to consent: White v. Brooks, 43 N. H. 402; Dale v. Olmstead, 36 III. 150, 8s Am. Dec. 397. 4' !"• 344- 2T^C^ MOnr.S OK OIlT.MXINd TITI.K TO I'KUSOVAI. PROPRRTY. j» 51. Same— Rule where goods are of equal value. HESSELTINE v. STOCKWELL. [30 Me. 237.] Supreme Judicial Court of Mai m\ 1849. .Shf.pi.ky, C. J. — Tins was nn .action of trover brought to re- cover the value of certain pine logs. The logs appear to have composed a part of a larger lot estimated to contain more than six hundred thousand feet, which were cut and hauled by Leander Preble. The case states th.it there was testimony tending to prove that Treble cut on his land about six hundred thousand feet of pine lumber, and also cut on the land of the plaintiff about jWC hundred thousand feet of pine lumber of a similar ciuality, all of which logs were marked with the same mark and hauled and landed on the same landing place. With other instructions the jury were instructed "that it did not appear that any question of confusion of property arose in the action." What will constitute a confusion of goods has been the sub- ject of much discussion, and it has become a (juestion of much interest to the owners of lands upon which there are timber trees, as well as to those persons interested in the lumbering business, whether the doctrine can be applicable to the inter- mixture of logs. When there has been such an intermixture of goods owned by different persons that the property of each can no longer be distinguished, what is denominated a confusion of goods has taken place. And this may take place with respect to mill logs and other lumber. IJut it can do so only upon proof that the property of each can no longer be distinguished. That the doctrine might be applicable to mill logs is admitted in the case of Loomis v. Green, 7 Greenl. 393. The case of Wingate V. Smith, 30 Maine, 387, has been alluded to as exhil ■Mn<: different doctrine; but the case does not authori -■ .1 conclusion. The instructions were, "that merely , the mill logs and fraudulently mixing them with the ( ulant's logs would not constitute confusion of goods." These instrui tions w ere and clearly must have been approved ; for an add nxY. llKSSKI/riNK V. STOtKWKI.L. ii7 gilt to rc- ir to liavc no re than hauled by testimony c hundred md of the mlier of a the same :e. With t did not ose in the 1 the sub- 1 of much re timber lumbering the inter- ids owned longer be goods has ect to mill proof that That the :ted in the if Wingatc :hil 'Mn<: a , the iidant's !se iii- «ny ^^ ^^^^ ^^^^j.^^. ward appear had ^^en known or use p ^^^ ^^^^j^_ tion for a patent, should be ""^^^y ^^J^; ' .^^^ states, and i„, in the Act - -n^ -;^- :„ t,^^^^ ,„ England or that if the invention was prcvio y ^^^^ France it was -«^7J;°^:;:ircSusion that the plain- That the evidence ^-°"^J^^^; f ^^^ ^^c murt were of opinion tiff was the inventor in this case, but mc tl u P V a b a h i ii c c EUTY, SHAW V. COOPER. 243 ,vith others a view to ffidavits of ;nown, and lock at the at I should :tice, other- ny intention le meantime ided for the at the patent s appears by oatent of the r intended to ; it must be nd the rights ite of things ;nt was first der the Act ding the right of which the ition has not, wn or used in nost probably 1 for which he en in use in a orance on that ng part of the atent obtained t should after- } such applica- there was noth- id States; and in England or nder that Act- I that the plain- vere of opinion that he had slept too long on his rights, and not followed them up as the law requires to entitle him to any benefit from his patent. That the use of the invention, by a person who had pirated it, or by others who knew of the piracy, would not affect the inventor's rights, but that the law was made for the benefit of the public as well as of the inventor; and if, as appears from the evidence in this case, the public had fairly becou.e possessed of the invention before the plaintiff applied for his patent, it was sufficient, in the opinion of the court, to invalidate the patent; even though the invention may have originally got into public use through the fraud or misconduct of hrs brother, to whom he intrusted the knowledge of it. Under this charge the jury found a verdict for the defendant, on which a judgment was entered. There is a general assignment of errors, which brings to the consideration of the court the principles of law which arise out of the facts of the case, as stated in the bill of exceptions. It may be proper in the first place to inquire whether the letters patent which were obtained in 1829, on a surrender of the first patent, have relation to the emanation of the patent in 1822, or shall be considered as having been issued on an original application. On the part of the plaintiff it is contended that "the second patent is original and independent, and not a continuation of the first patent." That in adopting the policy of giving, for a term of years, exclusive rights to inventors in this country, we adopted at the same time the rules of the common law as applied to patents in England : and that by the common law a patent when defective may be surrendered to the granting power, which vacates the right under it, and the king may grant the right de novo either to the same or to any other person. This being the effect of the surrender of a patent in England, it is insisted that the same consequence should follow a sur- render in this country. On this subject it is said, that the decisions of the English courts are uniform, and that not even a dictum can be found that a second patent is a continuation of the first. The counsel seems to consider this point of great importance, as the plaintiff was an alien when the first patent was obtained, 2 44 MODES OF OnTAINlNG TITLE TO PERSONAL PROPEnTY. but had become naturalized before the date of the second; and, consequently, that his rights under the second patent can not be governed by the law applicable to aliens. As the inquiry on this head is, whether the second patent has relation to the first, it is not necessary to look into the laws to ascertain the respective rights of aliens and citizens on this subject. In regard to the rights of the patentee to surrender a defective patent, a.;d take out a new one, there can be no difference between a citizen and an alien. That the holder of a defective patent may surrender it to the department of state, and obtain a new one, which shall have relation to the emanation of the first, was decided by this court at the last term in the case of Grant and others v. Raymond, 6 Peters, 220. The chief justice, in giving the opinion of the court, says: "But the new patent, and the proceedings on which it issues, have relation to the original transaction. The time of the privilege still runs from the date of the original patent. The application may be considered as appended to the original application; and if the new patent is valid, the law must be considered as satisfied if the machine was not known or used before that application." As this decision must b^ considered as settling the construc- tion of the patent laws on this point, it is conclusive in the present case ; and it is, therefore, unnecessary to examine the argument of the plr.intiff's counsel, which was designed to lead to a different conclusion. The second patent being a continuation of the first one, the rights of the plaintiff must be ascertained by the law under which the original application was made. This law was passed on the seventeenth of April, iSoo, and provides "that all and singular the rights and privileges given to citizens of the United States respecting patents for new inven- tions, etc., shall be extended to aliens, who, at the time of peti- tioning, shall have resided for two years within the United States, etc. Provided, that every person petitioning for a patent for any invention, art, or discovery, pursuant to this Act, shall make oath or affirmation before some person duly authorized to administer oaths, before such patent shall be granted, that such invention, art, or discovery hath not to the best of his or her knowledge or belief been known or used. OPERTY. SHAW V. COOPER. '45 second; and, itent can not 5 the inquiry elation to the ascertain the subject. In r a defective no difference ;nder it to the :h shall have 1 by this court , Raymond, 6 pinion of the roceedings on saction. The if the original 3 appended to valid, the law as not known r the construc- clusive in the o examine the ;signed to lead e first one, the the law under pril, iSoo, and vileges given to :or new inven- le time of peti- lin the Uniied titioning for a ursuant to this ne person duly patent shall be lath not to the known or used, either in this or any foreign, country ; and that every patent which shall be obtained r..rsuant to this Act for any invention, art, or discovciv wnich it shall afterward appear had been known or used previous to such application for a patent, shall be utterly void." By the Act of the twenty-first of February, 1793, which limits patent rights to citizens, it is provided "that every person or persons, in his or their application for a patent, shall state that the machine, etc., was noi knoivn or used before such applica- tion." The sixth section of this Act provides that a defendant, when prosecuted for a violation of a patent right, may give in evi- dence, under a notice, among other matters, "that the thing secured by patent was not originally discovered by the patentee, but had been in use, or had been described in some public work anterior to the supposed discovery of the patentee, or that he had surreptitiously obtained a patent for the discovery of another person : in either of which cases judgment shall be rendered for the defendant with costs, and the patent shall be declared void." It would seem, from the above provisions, that citizens and aliens, as to patent rights, are placed substantially upon the same ground. In either case, if the invention was known or used by the public before it was patented, the patent is void. In both cases the right must be tested by the same rule. From the facts in the case, it appears that the plaintiff, while residing in England, in 1S13 or 1814, invented the instrument secured by his patent. That before he came to the United States, he made known his invention to his brother, to Mr. Manlon, a gun-maker in London, and to others. That shortly after he came to the United States, in 1817, he disclosed his invention to a gun-maker in Philadelphia, and that in 1817 or 1 8 18, the plaintiff's brother sold the invention to a gun-maker in London. That in 1819 th: invention was sold and used in England ; and that in the two following years it was in public use there, and in the latter year also in France. That on the nineteenth of June, 1S22, his first patent was obtained. It also appears that in April, 1807, a patent was granted in England to one Forsyth for fourteen years, for an invention on the same subject. This fact was shown by the plaintiff, it is 2^6 MODES OF OBTAINING TITLE TO PERSONAL PROI'EIITY. presumed, as a reason why he did not take out a patent in En<{land. The question arises from these facts, and others which be'ong to the case, whether there was such a use in the public, of this invention, at the date of the plaintiff's first patent, as to render it void. By the plaintiff's counsel it is insisted that if an invention ha» been pirated, or fraudulently divulged, the inventor can not thereby lose his right to his own invention and property ; and it makes no difference that the public have acquired the use of the invention without any participation in the fraud, unless the inventor has acquiesced in such use. The right of the plaintiff to his invention is compared to his right to other property, which can not be divested by fraud or violence; and the case of Miller v. Taylor, 4 Burr. 2303, where seven judges against four held, that at common law, an author, by publishing a literary composition, does not abandon his right, is referred to as illustrative of the principle. Several decisions by the circuit courts of the United States are cited to sustain the right of the plaintiff. In the case of Whittemore v. Cutter, i Gall. 4S2, the court say: "It will not protect the plaintiff's patent, that he was the inventor of the improvements, if he suffered them to be used freely and fully by the public at large for so many years, combined with all the usual machinery ; for in such case he must be deemed to have made a gift of them to the public, as much as a person who voluntarily opens his land as a highway, and suffers it to remain for a length of time devoted to public use." In the case of Goodyear v. Matthews, i Paine's Rep. 301, the court, in substance, say, "that if the plaintiff be the inventor, it is immaterial that the invention has been known and used for years before the application." And in the case of Morris v. Huntington, i Paine, 354, the court say, that "no man is to be permitted to lie by for years, and then take out a patent. If he has been practicing his invention with a view of improving it, and thereby rendering it a greater benefit to the public, before taking out a patent, that ought not to prejudice him. But it should always be a question submitted to the jury, what was the intent of the delay of the patent, and whether the allowing the invention to be used without a patent should IFEIITY. I patent in hich belong blic, of this as to render iventlon ha* tor can ' not operty ; and d the use of 1, unless the ipared to his by fraud or 2303, where f, an author, Ion his right, nited States the case of "It will not entor of the ;ly and fully I with all the med to have person who s it to remain ;'s Rep. 301, the inventor, and used for of Morris v. man is to be )atent. If he improving it, aublic, before him. But it e jury, what whether the patent should SHAW V. COOl'EH. 347 not be considered an abandonment or present of it to the public." This was a case where a second patent had been obtamcd, the first being defective, and this, it would seem, was deemed sufficient to protect the right of the plaintiff, though the public had been in possession of the invention for six years before the emanation of the second patent. Of the same import are the cases cited from 4 Mas. icS, and 4 Wash. 43S and 703. The question what use in the public before the application is made for a patent shall made void the right of the patentee, was brought before this court by the case of Pennock and Sel- lers V. Dialogue, reported in 3 Pet. i. In this case the court say that "it has not been, and indeed can not be denied, that an inventor may abandon his invention and surrender or dedicate it to the public. This inchoate right, thus gone, can not afterward be resumed at his pleasure ; for when gifts are once made to the public in this way, they become absolute." And again, "if an invention is used by the public, with the consent of the inventor, at the time of his application for a patent, how can the court say, that his case is nevertheless such as the act was intended, to protect? If such a public use is not a use within the meaning of the statute, how can the court extract the case from its operation, and support a patent, when the suggestions of the patentee were not true ; and the conditions, on which alone the grant was authorized, do not exist." "The true construction of the patent law is," the court say, "that the first inventor can not acquire a good title to a patent, if he suffers the thing invented to go into public use, or to be publicly sold for use before he makes application for a patent." In this case it appeared that the thing invented had been in use by the public, with the consent of the inventors, and through which they derived a profit, for seven years before the emanation of a patent. And this use was held by the court to be an abandonment of the right by the patentees. The policy of granting exclusive privileges in certain cases was deemed of so much importance in a national point of view, that power was given to congress in the federal constitution, "to promote the progress of science and useful arts, by securing for limited times, to authors and inventors, the exclusive right to their respective writings and discoveries." 24S MODES OF OnTAINlNG TITLE TO PERSONAL PUOPERTY. This power was cxcrcisid by congress, in the passage of the acts which have been rcfcnccl to. Aiul from an examination of their various provisions, it clearly appears, that it was the inten- tion of the legislature, by a compliance with the requisites of the law, to vest the exclusive right in the inventor only ; and that on condition, that his invention was neither known nor used by the public, before his application for a patent. If such use or knowledge shall be proved to have existed, prior to the application for the patent, the act of 1793 declares the patent void ; and as has been already stated, the right of an alien is vacated in the same manner, by proving a foreign use or knowledge of his invention. That knowledge or use which would be fatal to the patent right of a citizen, would be equally so to the right of an alien. The knowledge or use spoken of in the act of 1793 could have referred to the public only, for the provision would be nugatory if it were applied to the inventor himself. He must, necessarily, have a perfect knowledge of the thing invented and its use, before he can describe it, as by law he is required to do, preparatory to the emanation of a patent. But there may be cases in which a knowledge of the invention may be surreptitiously obtained and communicated to the public, that do not affect the right of the inventor. Under such circumstances no presumption can arise in favor of an abandon- ment of the right to the public, by the inventor; though an acquiescence on his part will lay the foundation tor such a pre- sumption. , „ a: In England it has been deci.led that if an niventor shall suffer the thing invented to be sold, and go into public use for four months; and in a later case for any period of time, before the date of his patent, it is utterly void. In that country the right emanates from the royal prerogative; in this, it is founded exclusively on statutory provisions. But the policy in both governments is the same, in granting the right, and in fixing its limits. . Vigilance is necessary to entitle an individual to the privileges secured under the patent law. It is not enough that he should show his right by invention, but he must secure it in the mode required by law. And if the invention, through fraudulent means, shall be made known to the public, he should assert PERTV. sa^c of the nination of IS the inten- eciuisites of only ; ami known nor lit. If such jiior to the i the patent an alien is :ign use or use which 1 be equally 1793 could n would be He must, ng invented e is required But there 'ention may the public, Under such an abandon- ; though an r such a pre- (r shall suffer use for four le, before the ntry the right t is founded olicy in both d in fixing its the privileges hat he should t in the mode ^h fraudulent should assert SHAW V. COOPER. 949 his right immediately, and take the necessary steps to legal- ' The patent law was designed for the public benefit, as well -,s for the benelit of inventors. For a valuable invention, the public, on the inventor's complying with certain conditions, give him, for a limited period, the profits arising from the sale of the thing invented. This holds out an inducement for the exercise of genius and skill in making discoveries which maybe useful to society, and profitable to the discoverer. But it was not the intention of this law to take from the public that of which thcv were fairly in possession. In the progress of society, the range of discoveries in the mechanic arts, in science, and in all things which promote the public convenience, as a matter of course, will be enlarged. This results from the aggregation of mind, and the diversity of talents and pursuits, which exist in every intelligent com- munity. And it would be extremely impolitic to retard or embarrass this advance, by withdrawing from the public any useful invention or art, and making it a subject of private monopoly. Against this consequence, the legislature have carefully guarded in the laws they have passed on the subject. It is undoubtedly just that every discoverer should realize the benefits resulting from his discovery for the period contemplated by law But these can only be secured by a substantial com- pliance with every legal requisite. His exclusive right does not rest Mone upon his discovery; but also upon the legal sanctions which have been given to it, and the forms of law with which it has been clothed. No matter by what means an invention may be communi- cated to the public, before a patent is obtained, any acquies- cence in the public use, by the inventor, will be an abandon- ment of his right. If the right were asserted by him who fraudulently obtained it, perhaps no lapse of time could give it validity. But the public stand in an entirely different relation to the inventor. The invention passes into the possession of innocent persons, who have no knowledge of the fraud, and at a considerable expense, perhaps, they appropriate it to their own use. The inventor or his agent has full knowledge of these facts, but fails 350 MODES OF OBTAIN'ING TITLE TO PERSONAL PUOPEUTY. to assert his right; shall he afterward be permitted to assert it with effect? Is not this such evidence of acquiescence m the public use, on his part, as justly forfeits his right ? If an individual witness a sale and transfer of real estate, under certain circumstances, in which he has an equitable l.en or interest, and does not make known this interest, he shall not afterward be permitted to assert it. On this principle it is that a discoverer abandons his right, if, before the obtain, ment of his patent, his discovery goes into public use. His right would be secured by giving public notice that he was the inventor of the thing used, and that he should apply for a natent. Does this impose anything more than reasonable diligence on the inventor? And would anything short of this be just to the public? The acquiescence of an inventor in the public use of his invention can in no case be presumed where he has no knowl- edge of such use. But this knowledge may be presumed from the circumstances of the case. This will, in general be a fact for the jury. And if the inventor do not, immediately after this notice, assert his right, it is such evidence of acquies- cence in the public use as forever afterward to prevent him from asserting it. After his right shall be perfected by a patent, no presumption arises against it from a subsequent use by the public. , . ^ r When an inventor applies to the department of state for a patent, he should f tate the facts truly ; and indeed he is required to do so, under the solemn obligations of an oath. If his invention has been carried into public use by fraud, but for a series of months or years he has taken no steps to assert his right, would not this afford such evidence of acquiescence as to defeat his application, as effectually as if he failed to state that he was the original inventor? And the same evidence which should defeat his application for a patent, would, at any subsequent period, be fatal to his right. The evidence he exhibits to the department of state is not only ex farte, but interested and the questions of fact are left open, to be contro- verted by any one who shall think proper to contest the right under the patent. A strict construction of the act, as it regards the public use of an invention before it is patented, is not only required by PEUTY. [o assert it ;nce in the real estate, uitable lien t, he shall principle it the obtain- c use. His ; he was the apply for a reasonable ihort of this : use of his 9 no knowl- isumed from jneral, be a immediately i of acquies- prevent him rfected by a bsequent use f state for a le is required oath. If his id, but for a ps to assert acquiescence he failed to ame evidence it, would, at B evidence he !X parte, but to be contro- iitest the right :he public use ly required by 8IIAW V. COOPEIl. -d' its letter and spirit, but also by sound policy A term of fourteen years was deemed sutlicicnt for the enjoyment of an exclusive ri^ht of an invention by tlie inventor; but if he may delay an application for his patent, at pleasure, althouf,'h his invention be carried into public use, he may extend the period beyond what the law intended to give him. A pretense of fraud would afford no adequate security to the public in this respect, as artifice might be used to cover the transaction. The doctrine of presumed acquiescence, where the public use is known, or might be known to the inventor, is the only safe rule which can be adopted on this subject. In the case under consideration it appears the plaintiff came to this country, from England, in the year 1S17, and, being an alien, he could not apply for a patent until he had remained in the country two years. There was no legal obstruction to his obtaining a patent in the year 1819; but it seems that he failed to apply for one until three years after he might have done so. Had he used proper diligence in this respect his right mi<»ht have been secured, as his invention was not sold in England until the year 18 19. But, in the two following years, it is proved to have been in public use there, and, in the latter year, also in France. Under such circumstances, can the plaintiff's right be sustained ? His counsel assigns as a reason for not making an earlier application, that he was endeavoring to make his invention more perfect ; but it seems by this delay, he was not enabled essentially to vary or improve it. The plan is substantially the same as was carried into public use through the brother of the plaintiff, in England. Such an excuse, therefore, can not avail the plaintiff. For three years before the emanation of his patent, his invention was in public use, and he appears to have taken no step to assert his right. Indeed, he sets up, as a part of his case, the patent to Forsythe, as a reason why he did not apply for a patent in England. The Forsythe patent was dead six years before. Some of the decisions of the circuit courts, which are referred to, were overruled in the case of Pennock and Sellers v. Dialogue. They made the question of abandonment to turn upon the in- tention of the inventor. But such is not considered to be the true ground. Whatever may be the intention of the inventor, 253 MODES OF OUTAINING TITLE TO PERSONAL PROPERTY. if he suffer^ his invention to go into public use, through any means whatsoever, without an immediate assertion of his right, hf^ is not entitled to a patent, nc r will a patent, obtained u-ider such circumstances, protect nis right. The judgment of the circuit court must be affirmed with costs. Consult— Hammond v. Stockton Works, 70 Fed, Rev- 716; Moore V. O'Reilly, 15 How. 169. § 53. Copyrights— The right a statutory one. WHEATON V. PETERS. [8 Pet. 59I-] Supreme Court of United States, 1834. The complainants claimed to have a copyright in and to the twelve volumes of Wheaton's Reports, and they alleged that defendant had violated their rights by printing and publishing the same in a series which defendants had prepared, entitled "Condensed Reports of Cases in the Supreme Court of the U. S.," and prayed among other things that defendants be restrained from further publication thereof. Mr. Justice McLean. — Some of thp questions which arise in this case are as novel, in this country, as they are interesting. But one case involving similar principles, except a decision by a state court, has occurred, and that was decided by the circuit court of the United States for the district of Pennsylvania, from whose decree no appeal was taken. The right of the complainants must be first examimed. If this right shall be sustained as set forth in the bill, and the defendants shall be proved to have violated it, the court will be bound to give the appropriate redress. The complainants assert their right on t vo grounds. First, under the common law. Secondly, under the acts of congress. And they insist, in the first plac, that an author was entitled, at common law, to a perpetual property in the copy of his PROPERTY. e, through any )n of his right, jbtaincd irider affirmed with lev- 716; Moore ae> VVHEATON V. PETERS. 353 ^34- ht in and to the ey alleged that and publishing spared, entitled e Court of the : defendants be 3ns which arise are interesting, t a decision by :d by the circuit : Pennsylvania, examimed. If le bill, and the , the court will rou nds. liorwa'i entitled, the copy of his works, and in the profits of their publication ; and to recover damages for its injury, by an action on the case, and to the protection of a court of equity. In support of this proposition, the counsel for the complain- ants have indulged in a wide range of argument, and have shown great industry and ability. The limited time allowed for the preparation of this opinion will not admit of an equally extended consideration of the subject by the court. Perhaps no topic in England has excited more discussion, among literary and talented men, than that of the literary prop- erty of authors. So engrossing was the subject, for a long time, as to leave few neutrals among those who were distin- guished for their learning and ability. At length the question, whether the copy of a book or literary composition belongs to the author at common law was brought before the court of King's Bench, in the great case of Miller v. Taylor, reported in 4 Burr 230.V This was a case of great expectation; and the four judg( 'n giving their opinions, seriatim, exhausted the argument oa both sides. Two of the judges and Lord Mansfic'd held that by the common law an author had a literary property in his works ; and they sustained their opinion with very great ability. Mr. Justice Yeates, in an opinion of great length, and with an ability, if equaled, certainly not surpassed, maintained the opposite ground. Previous to this case, injunctions had issued out of chancery to prevent the publication of certain works at the instance of those who claimed a property in the copyright, but no decision had been given. And a case had been commenced at law between Tonson and Collins, on the same ground, and was argued with great ability more than once, and the court of King's Bench were about to take the opinion of all the judges, when they discovered that the suit had been brought by col- lusion, to' try the question, and it was dismissed. This question was brought before the house of lords in the case of Donaldson v. Beckett and others, reported in 4 Burr. 240S. Lord Mansfield, being a peer, through feelings of delicacy, declined giving any opinion. The eleven judges gave their opinions on the following points: First. Whether at common law an author of any book or literary composition had the m\e immt^ .54 MODES OF OBtAINING TITLE TO PEKSONAL PROPEHTV. right cf first printing, and publishing the same for sale; and Xl bring an action against any person who printed, pub- S^d nd sold the sanfe without his consent. On th.s quest.on thtVere eight judges in the affirmative and three m the nega- ''Icconci. If the author had such right originally, did the law take t away upon his printing and publishing s-'^h book o. te 4 compo Hion? and might any person, afterward, repunt and sell for his own benefit, such book or literary compos.- T t.\L the will of the author? This quest.on was rUSi: the affirmative by four pdges and in the negative """^M^. If such action would have lain at common law is h taken away by the statute of S Anne; and is an author by t mXte precluded from every remedy, except on the foun- i-pmedv must be under the statute. Xtr Whether the author ot any literary »0">P-"'°". .„fh tip.», had the so,e right of printing - P""';^»« L same in perpetuity by the common law. Wh.ch quest.on „!s Teided in favor of the author by seven judges to fou, jrS Whether this right is in any way impeached restra med or1;h:n-away by the statute 8 AnneJ «;-» «- Hf ^f * thai the right is taken away by the statute. And the l.o.a Chlncellor' econding Lord Camden-s motion to reverse, the ., 'T::Z IpplTLm the points decided, that a majority of - judges were ';Xe°nt*:nTw:;"b X stlt" """'°"' but that the same had been taken aw. ty y The title and preamble of the statute 8 Anne, ch. 19, »« as fol ows "An act for the encouragement of learnmg by vest- ing the copies of prilled books in the authors or purchasers of such copies, durnig the times therein mentioned. 'whereas prinfers, booksellers, and other persons have o late frequentlv taken the liberty of printing, repnnt.ng and pSli h ng or'causing to be printed, reprinted and published r ok an! other writings without the consent of the authors - proprietors of such books and writings, to ^ -r very g at c a. Lent and too often to the ruin of t.em and their families, etc. PERTY. f sale ; and nted, pub- lis question n the nega- did the law ,ch book or ■ard, reprint ry composi- Liestion was the negative on law, is it ithor, by f - on the foun- le conditions ;ided that the composition, d publishing hich question IS to four, sd, restrained, udges decided ind the Lord 3 reverse, the a majority of ht of authors, itute. e, ch. 19, is as irning by vest- • purchasers of ersons have of reprinting and and published, the authors or ery great c'ctri- ■ families," etc. WHEATON V. PETERS. ass In 7 Term Rep. 627, Lord Kenyon says: "All arguments m the support of the rights of learned men ■"/!!? 7 ' Tto ever be heard with great favor by men of hberal mmds to whom they are addressed. It was ,.obably on tha account that when the great question of literary property was discussed some judges of enlightened understandmg went the length of maintaining that the right of publication -«ted exclus ve y in the authors and those who claimed under them foi al time; but the other opinion finally prevailed, which established that the right was confined to the times limited by the at of Parliament. And that, I have no doubt, was the right dec- *' And in the case of the University of Cambridge v. ^^yo'^f East,3i9,Lord EUenborough remarked: "It has been said that The s t.^ of 8 Anne has three objects;but I can not subdivKl the two fir.t; I think it has only two. The counsel f 01 the pla ;tfs contended that there was no right at common law and perhaps there might not be ; but of that we have not particularly 'T^om the'^^above authorities, and others which might be referred to if time permitted, the law appears to be well settled a England that since the statute of 8 Anne the literary prop- erty 0I an author in his works can only be asserted under the statute, and that, notwithstanding the opinion of a majority of the judges in the great case of Miller v. Taylor was in favor of the common law right before the statute it is st.ll considered in England as a question by no means free .rom "^^T^hat an author, at common law, has a property in his manu- script, and may obtain redress against any one who deprives h.m of it, or by improperly obtaining a copy endeavors to realize a profit by its publication, can not be doubted ; but this is a very different right from that which asserts a perpetual and exclusive property in the future publication of the work, after the author shall have published it to the world. The argument that a literary man is as much enl>tled to the product of his labor as any other member of society, can not be controverted. And the answer is, that he realizes this produc •oy the transfer of his manuscripts, or in the sale of his works when first published. 256 MODES OF OBTAINIXG TITLE TO PERSONAL PROPERTY. A book is valuable on account of the matter it contains, the ideas it communicates, the Instruction or entertainment it affords. Does the author hold a perpetual property in these? Is there an implied contract by every purchaser of his book that he may realize whatever instruction or entertainment which t.ie read- ing of it shall give, but shall not write out or prmt its con- In what respect does the right of an author differ from that of an individual who has invented a most useful and valuable machine? In the production of this, his mmd has been as intensely engaged, as long and perhaps as usefully to the public, as any distinguished author in the composition of his ^°The result of their labors maybe equally beneficial to society and in their respective spheres they may be alike distmguished for mental vigor. Does the common law give a perpetual ng. to the author, and withhold it from the inventor? And yet it has never been pretended that the latter could hold by the common law, any property in his invention after he shall have sold ,t ^"it vt^iild seem, therefore, that the existence of a principle may well be doubted, which operates so unequally. This is not a characteristic of the common law. It is said to be founded on principles of justice, and that all its rules must conform to sound '' Does not the mat. who imitates the machine profit as much by the labor of another as he who imitates or republishes a book ? Can there be a difference between the types and press with which one is formed, and the instruments used in the construction of t\ f* otlicrs ' That everv man is entitled to the fruits of his own labor niust be admitted'; but he can enjoy them only, except by statutory provision, under the rules of property, which regulate society, and which define the rights of things is general. But if the common law right of authors were shown to exist in England, does the same right exist, and to the same extent, "It is dLTJiere'can be no common law of the United States. The federal government is composed of twenty-four sovereign and independent states, each of which may have its local usages. ^M ERTY. WHEATON V. PETERS. 257 ntains, the t it affords. Is there an lat he may 1 tlie read- lit its con- r from that id valuable as been as illy to the ition of his il to society, istinguished petual right nd yet it has the common have sold it rinciple may 'his is not a ; founded on orm to sound t as much by ishes a book? ss with which )nstruction of m labor must : by statutory ;ulate society, hown to exist same extent, United States, 'our sovereign s local usages, customs, and common law. There is no principle which per- vades the Union and has the authority of law that is not embod- ied in the constitution or laws of the Union. The common law could be made a part of our federal system only by legisla- tive adoption. When, therefore, a common law right is asserted, we must look to the state in which the controversy originated. And in the case under consideration, as the copyright was entered in the clerk's office of the district court of Pennsylvania, for the first volume of the book in controversy, and it was published in that state, we may inquire whether the common law as to copyrights, if any existed, was adopted in Pennsylvania. It is insisted that our ancestors, when they emigrated to this country, brought with ihem the English common law as a part of iheir herita^je. That this was the case to u limited extent is admitted. No one will contend that the common law, as it existed in England, has ever been in force in all its provisions in any state in this Union. It was adopted so far only as its principles were suited to the condition of the colonies; and from this circumstance we see what is common law in one state is not so considered in another. The judicial decisions, the usages and customs of the respective states must determine how far the common law has been introduced and sanctioned in each. In the argument, it was insisted that no presumption could be drawn against the existence of the common law as to copy- rights, in Pennsylvania, from the fact of its never having been asserted until the commencement of this suit. It may be true, in general, that the failure to assert any par- ticular right may afford no evidence of the nonexistence of such right. But the present case may well form an exception to this rule. If the common law, in all its provisions, has not been intro- duced into Pennsylvania, to what extent has it been adopted ? Must not this court have some evidence on this subject? If no right, such us is set up by the complainants, has heretofore been asserted, no custom or usage established, no judicial decision been given, can the conclusion be justified that by the common law of Pennsylvania, an author has a perpetual property in the copyright of his works? -.»,i«.vr TITLE TO PEUSONAL PUOPERTY. 258 MODES OF OBTAINING TITLE lu not made a subject of ]udiciai_ 1 s ^.^^^^ ^,_ the publication of new works ""d^^ ' ""J ^^^^ ,v,, exclusive and a little more than a ^^" "•^^'^''^^^e right of auth^^^ C-an It uc learned jurists of England, at a period m •"' ^r was brought h,.o the wUds o£ Pennsyl»»ma I" rfi:::rer;;ir wiu ».ed » .,«. c„„diuon. " V,. tbere . ano.he, vie-.™ ---f— o„s..uUo„ .. .'n*;?siTT;: :*.".. iron,.. *,„ b„ve ^.. the U""«"'f" "•''," „j science and useful arts, by securing "to promote the piogress ol sci^. exclusive right for limited times to authors and nventois ti . mentioned." ^Jm^m PERTY. doubt the others of a authors was \gl.\nd until of Miller v. e the colony ommon law England ? ed, was then d regulating the king, as he exclusive k of common recognized in lized. Long controversy, id perplexity ; ecided by the authors could statute. The it, so involved England, at a r learning and [ Pennsylvania condition ? Constitution of .all have powe. rts, by securing exclusive right And in pursu- issed the act of ent of learning. 1 books, to the he times therein WHEATON V. PETERS. 259 In the first section of this act it is provided, "that from and after its passage, the author and authors of any map, chart, book, or books, already printed within these United States, being a citizen, etc., who hath or have not transferred to any other person the copyright of such map, chart, book, or books, etc., shall have the sole right and liberty of printing, reprmtmg, publishing, and vending such map, book, or books, for fourteen years." , In behalf of the common law right an argument has been drawn from the word scctirc, which is used in relation to this right, both in the constitution and in the acts of congress. This' word, when used as a verb active, signifies to protect, insure, save, ascertain, etc. The counsel for the complainants insist that the term, as used, clearly indicates an intention, not to originate a right, but to protect one already in existence. There is no mode by which the meaning afiixed to any word or sentence, by a deliberative body, can be so well ascertained, as by comparing it with the words and sentences with which it stands connected. Bv this rule the word secure, as used in the constitution, could not mean the protection of an acknowledged legal right. It refers to inventors as well as authors, and it has never been pretended by any one, either in this country or in England, that an inventor has a perpetual right, at common law, to sell the thing invented. And if the word secure is used in the constitution in refer- ence to a future right, was it not so used in the act of consiess? But it is said, that part of the first section of the act of con- gress which has been quoted, a copyright is not only recognized as existing, but that it may be assigned, as the rights of the assignee are protected, the same as those of the author. As before stated, an author has, by the common law, a prop- erty in his manuscript; and there can be no doubt that the rights of an assignee of such manuscript would be protected by a court of chancery. This is presumed to be the copyright recognized in the act, and which was intended to be protected by its provisions. And this protection was given, as well to books published under such circumstances, as to manuscript copies. ,, , , , . , , That congress, in passing the act of 1790, did not legislate in reference to existing rights appears clear from the provision .6o MODES OK OHTAINIXG TITLE TO PEUSONAL PUOPKUTV. th.t the author, etc., "shall have the sole right and liberty of ,t^. ' e c Now, if this exclusive right existed at common r ; Zi congres^ .4. about to adopt legislative prov.s.ons :: '.: pro^ectfon, would they have used this language C^u d thev have deemed it necessary to vest a right aheady vested^ SucCretmption is refuted by the words above ,^ted, and their force is not lessened by any other part of the act. ----; ^C^^:;r "^iirr ^Tt^s ^" m irritations it would seem that if the right^of the complainants can be sustained, it must be sustan.ed under th c s of ongress. Such was, probably, the opnuon of the couns who frimed the bill, as the right is asserted under he St. e and no particular reference is made to . as ex,stu.g r r-nlaw. V claim, then, of the -.plaman s -us be examined in reference to the statutes under wh.ch >t ^Thet are but two statutes which have ^ ^eanng on tl>is subject; one of them has already been named, and the other was passed the twenty-ninth of April, 1802 The first section of the act of 179° provides, hat an author orlis as g. ee "shall have the sole right and liberty o print- •„, repr Sing, publishing, and vending such map, chart book "books for the term of fourteen years, from the recording of Ltt thereof in the clerk's office, as he-^jnafter directed : .„d that the author, etc., in books not published, etc., hall h"ve the sole right and liberty of printing, reprinting, publish- nTand vending such map, chart, book, or books, for the like t^f. of fourteen years, f'rom the time of recording the title heTeof in the clerk's office as aforesaid. And at the expiration of the s^ term, the author, etc., shall have the same exclusive :ghtcon^nuedtohim,etc. for the further term of fou..een vears- provided he or they shall cause the title thereof to be a ec'nd time recorded, and published in the same manner as 1 herchlfter directed, and .hat within six months before the expiration of the first term of fo-^een years. The third sect on provides, that no person b»ai tole benefit of this act, etc., unless he shall first deposit, etc., " •- •ERTY. liberty of it common provisions e ? Could [ly vested ? uoted, and ct. an existing )e the clear nces under the right of lined under inion of the i under the t as existing inants must which it is ring on this id the other at an author irty of print- chart, book, recording of ter directed: !d, etc., shall ing, publish- i, for the like ding the title the expiration ime exclusive 1 of fourteen lereof to be a manner as is is before the all be entitled ; deposit, etc., WHEATON V. PETERS. 361 a printed copy of the title in the clerk's office," etc. "And such author or proprietor shall, within two months from the date thereof, cause a copy of said record to be published in one or more of the newspapers printed in the United States for the space of four weeks." And the fourth section enacts that "the author, etc., shall, within six months after the publishing thereof, deliver or cause to be delivered to the secretary of state a copy of the same, to be preserved in his office." The first section of the act of 1802 provides that "every person who shall claim to be the author, etc., before he shall be entitled to the benefit of the act entitled an act for the encouragement of learning, by securing the copies of maps, charts, and books, to the authors and proprietors of such copies, during the time therein mentioned, he shall, in addition to the requisites enjoined in the third and fourth sections of said act, if a book or books, give information by causing the copy of the record which by said act he is required to publish, to be inserted in the page of the book next to the title." These are subsequently the provisions by which the com- plainants' right must be tested. They claim under a renewal of the term, but this necessarily involves the validity of the right, under the first as well as the second term. In the lan- guage of the statute, the "same exclusive right" is continued the second term that existed the first. It will be observed that a right accrues under the act of 1790 from the time a copy of the title of the book is deposited in the clerk's office. But the act of 1802 adds another requisite to the accruing of the right, and that is, that the record made by the • clerk shall be published in the page next to the title-page of the book. And it is argued with great earnestness and ability that these are the only requisites to the perfection of the complainants' title; that the requisition of the third section to give public notice in the newspapers, and that contained in the fourth to deposit a copy in the department of state, are acts subsequent to the accruing of the right, and whether they are performed or not, can not materially affect the title. The case is compared to a grant with conditions subsequent, which can never operate as a forfeiture of the title. It is said, 262 MOOES OP OBTAINING TITLE TO PERSONAL PHOPERTV. also, that the object of the publication in tl- newspaper and the deposit of the copy in the department of ^^^^'^ ^ ^ ^ ^ ^ to L'ive notice to the public; and that such acts, not be ^ ssenti^.. to the title, after so .reat a lapse of f- -y we presumed. That if neither act had been done, the ^^g'^ «^;*^« party having accrued before either was required to be done, "^ TLn;i:;:f h^I^een shown, does not ^ist at common law-it originated, if at all, under the acts of -ng-ss No o?e can deny that when the legislature are about to vest an : lu" e r"ht in an author or an inventor, they have the powe o p e c ibe the conditions on which such right shall be enjoyed to prescriuL ui^ , j^ ^ ^^^ and that no one can avad ^""«^'^. ° . '""'' .X .rw substantially comply with the requ.s.t.ons oithelo^_ This principle is familiar, as .t '^^^'''^'^,7^ "^ "fj' ' f any is the same in relation to the copyright of a book If any ifft^nce shall be made, as 't respects a stnctconformUy he law, it would seem to be more reasonable to make the require •nent of the author rather than the inventor. ,„„„, „f tL papers of the latter are examined in the department of ,„ ■„ the order in which they must naturally transprrc. F.rst Z "tie of the book is to be deposited with the clerk, and the odi: makes must be inserted in the «-' - --''„P»f ' Sirsir:::thrrt;^%=r.he^= - r:; :rrtr^it°;:rrTf;^^vr^ "■SltJartre^rorlTiompelled either to give notice in the nl.pap.rs or deposit a copy in the state depatme." The S.Z affixes no penalty for a failure " P" »™ jt Vn these acts; and it provides no mean, by wh.ch ,t may been '°Bu'we are told they «e unimportant acts. If they are ^^ PERTY. papers and ,vas merely not beinj? nay well be right of the be done, it at commori igress. No it to vest an ethe power be enjoyed ; ho does not V. ghts ; and it )ok. If any irmity to the the require- jpartment of eral ; but the f, unchecked :ure his right ipirc. First, lerk, and the second page ; e given ; and book, a copy ig made with it what is the he other two give notice in department? form either of it may be en- If they are WHEATON V. PETERS. a63 indeed wholly unimportant, congress acted unwisely in requir- ing them to be done. But whether they are important or not is not for the court to determine, but the legislature ; and in what light they were considered by the legislature we can learn only by their otTicial acts. Judging then of these acts by this rule, we are not at liberty to say they are unimportant and may be dispensed with. They are acts which the law requires to be done, and may this court dispense with their performance? Hut the inquiry is made, shall the nonperformance of these subsequent conditions operate as a forfeiture of the right? The answer is, that this is not a technical grant of precedent and subsequent condHions. All the conditions are important ; the law requires them to be performed; and, consequently, their performance is essential to a perfect title. On the per- formance of a part of them, the right vests; and this was es- sential to its protection under the statute; but other acts are to be done unless congress have legislated in vain to render the right perfect. The notice could not be published until after the entry with the clerk, nor could the book be deposited with the secretary of state until it was published. But these are acts not less important than those which are required to be done previously. They form a part of the title, and until they are performed the title is not perfect. The deposit of the book in the department of state may be important to identify it at any future period should the copy- right be contested or an unfounded claim of authorship as- serted. But, if doubts could be entertained whether the notice and deposit of the book in the state department were essential to the title under the act of 1790, on which act my opinion is principal! founded, though I consider it in connection with the other act ; there is, in the opinion of three of the judges, no ground for doubt under the act of 1S02. The latter act de- clares that every author, etc., before he shall be entitled to the benefit of the former act, shall, "in addition to the requisitions enjoined in the third and fourth sections of said act, if a book, publish," etc. Is not this a clear exposition of the first act? Can an author 364 MOOES OK OHTAININO TITLE TO PEUSONAI. PUOfKUTY. claim the benefit of the act of 1790 without performing "the requisites enjoined in the third and fourth sections ol .tr If there be any meaning in language, the act of 1.S02, the three judges think, requires these requisites to be performed -in addition- to the one required by that act, before an au- thor etc., "shall be entitled to the benefit of the first act." The rule by which conditions precedent and subsecjuent arc construed in a grant, can have no application to the case under consideration, as every requisite in both acts is essential to the ' A renewal of the term of fourteen years can only be obtained by havin- the title-page recorded with the clerk, and the record published on the page next to that of the title, and public not.ce given within six months before the expiration of the first term. In opposition to the constructio.i of the above statute, as now <.iven, the counsel for the complainants referred to several de- cisions given in England on the construction of the statutes of b Anne and other statutes. In the case of Beckford v. Hood, 7 Term Rep. 630, the court of King's Bench decided, "that an author, whose work is printed before the expiration of twentyeight years from the first publicationof it, may maintain an action on the case for damages against the offending party, although the work was not entered at Stationers Hall." But this entry was necessary only to subject the offender to certain penalties provided in the statute of 8 Anne. This suit brought was not for the penalties, and, consequently, the entry of the work at Stationers Hall was not made a question in the case. In the case o Blackwell y Harper, 2 Atk. 95. Lord Hardwicke is reported to have said upon the act of S Anne, c. 19, "the clause of registering with the stationers company is relative to the penalty, and the prop- erty can not vest without such entry;" for the words are "that ' nothing in this act shall be construed to subject any bookseller, etc to the forfeitures, etc., by reason of printing any book, etc"' unless the title to the copy of such book, hereafter pub- lished, shall, before such publicr.tion, be entered in the register boot of the company of stationers." ^ . .u The very language quoted by his lordship shows that the entry was not necessary to an investiture of the title, but to the recovery of the penalties provided in the act against those who pirated the work. ^^ IMAGE EVALUATION TEST TARGET (MT-3) ^ /. {/ A fe ^ 1.0 I.I 1.25 If: IB M 2.2 1.8 1.4 mil 1.6 Photographic Sciences Corporation 23 WEST MAIN STREET WEBSTER, N.Y. 14580 (716) 872-4503 ^M f/j «^ CIHM/ICMH Microfiche Series. CIHM/ICMH Collection de microfiches. Canadian Institute for Historical iVIicroreproductions / Institut Canadian de microreproductions historiques ^^. VVKEATOX V. PETERS. 265 His lordship decided in the same case that "under an act of parliament, providing that a certain inventor shall have the sole right and libcrtv of printing and reprinting ccrtani prmts for the term of fourteen years, and to commence from the day of first publishing thereof, which shall be truly engraved with the name of the proprietor on each plate, and printed on every such print or prints," the property in the prints vests abso- lutely in the engraver, "though the day of publication is not mentioned." The authority of this case is seriously questione ' in the case of Newton v. Cowie, 4 Bing. 2^1. And it would seem, from the decision of Lord Hardwicke, that he had doubts of the correctness of the decision, as he decreed an injunction without bygone profits. And Lord Alvanly, in the case ot Harrison v. Hogg, cited in 4 Bing. 242, said "that he was glad he was relieved from deciding on the same act, as he was in- clined to differ from Lord Hardwicke." By a reference to the English authorities in the construction of statutes somewhat analogous to those under which the complainants set up their right, it will be found that the de- cisions often conflict with each other; but it is believed that no settled construction has been given to any British statutes in all respects similar to those under consideration, which is at variance with the one now given. If, however, such an in- stance could be found, it would not lessen the confidence we feel in the correctness of the view which we have taken, The act of congress under which Mr. Wheaton, one of the complainants, in his capacity of reporter, was required to de- liver eighty copies of each volume of his reports to the depart- ment of state, and which were, probably, faithfully delivered, does not exonerate him from the deposit of a copy under the act of 1 790. The eighty volumes were delivered for a different purpose ; and can not excuse the deposit of the one volume as specially required. , j ■ The construction of the acts of congress being settled, in the further consideration of the case it would become necessary to look into the evidence and ascertain whether the complain- ants have not shown a substantial compliance with every legal requisite. But on reading the evidence we entertain doubts which induce us to remand the cause to the circuit court where the facts can be ascertained by a jury. 266 MODES OF OBTAINING TITLE TO PERSONAL PROPERTY. And the cause is accordingly remanded to the circuit court with directions to that court to order an issue of facts to be examined and tried by a jury at the bar of said court upon thispoint, vi/.., vvliethertiiesaid Wheaton as author or a.iy other person as proprietor, had complied with the requisites prescribed by the third and fourth sections of the said act of congress, passed the thirty-first day of May, 1790, i" regard to the volumes of Wheaton's Reports in the said bill mentioned, or in regard to one or more of them in the following particulars, viz., whether the said Wheaton or proprietor did, within two months from the date of the recording thereof in the clerk's office of the district court, cause a copy of the said record to be published in one or more of the newspapers printed in the resident states for the sp.ice of four weeks ; and whether the said Wheaton or proprietor after the publishing thereof, did deliver or cause to be delivered to the secretary of state of the United Stales, a copy of the same to be preserved in his office, jiccoiding to the provisions of the third and fourth sections of the said act. . And if the said requisites have not been complied with m regard to all the said volumes, then the jury to find in particular in regard to what volumes they or either of them have been so complied with. . It may be proper to remark that the court are unanimously of opinion that no reporter has or can have any copyright m the written opinions delivered by this court, and that the judges thereof can not confer on any reporter any such right. CoNsuLT-Dudley v. Mahew, 3 N. Y. 9; Rees v. Peltzer, 75 111. 475? Aronson v. Baker, 43 N. J. C^qO S^S- EllTY. •cuit court icts to be )uit upon )r or a.iy requisites lid act of gard to the )ned, or in ulars, viz., ■ithin two ;he clerk's ;cord to be :ed in the hether the lereof, did tate of the 1 his office, sections of ed with in n particuhir ve been so nanimously apyright in id that the uch right. r, 75 111- 475; BAKTLETTE V. CRITTENDEN. 267 § 54. Same— Publication, -what is a. BARTLETTE v. CRITTENDEN. [4 McLean, 300.] Umicci Siatcs Ciraiit Court, District of Ohio, 1847. Opinion of the court.— This is an application to enjoin the defendants from printing, publishing, or selling a work de- nominated "An inductive and practical system of double-entry bookkeeping, on an entirely new plan," on the ground that a m.aterial part of the manuscript, and the arrangement, were the work of the complainant, and were pirated from him by the defendants. It appears that the complainant for twelve years had been engaged in teaching the art of bookkeeping, in the city of Cincinnati and other places. That he had reduced to writing tlie system he taught on separate cards for the con- venience of imparting instruction to his pupils ; and that he permitted his students to copy these cards, with the view to their own advantage and to enable them to instruct others. That Jonathan Jones, being qualified in the school of the com- plainant, as a teacher, and having copied the manuscripts of the complainant, engaged, in connection with him, to teach a commercial school in St. Louis. While thus engaged, A. F. Crittenden, one of the defendants, entered the school at St. Louis as a student, and was permitted to copy the manuscripts of the complainant, in the possession of Jones ; and from those manuscripts, with certain alterations, he made up the first ninety-two pages of the book, under the above title, which was published in Philadelphia, in connection with his brother, by E. C. & J. Biddle, two of the defendants, in the present year. The answers of the defendants either deny the allegations of the bill, or do not admit them, and call for proof of the facts stated. On this motion for an injunction the merits of the case have been discussed, with much research and ability. This application is made under the ninth section of the act of congress of the third of February, 1S31 (4 Stat. 438), which provides, that "any person or persons who shall print or publish 26S MODES OF OBTAINING TITLE TO PERSONAL PROPERTY. any manuscript whatever, without the consent of the author or legal proprietor first obtained, etc., shall be liable to suffer and pay to the author or proprietor, all damages occasioned by such injury," etc. And power is given to grant an injunction to restrain the publication. The first section of the act of the thirtieth of June, 1S34 (4 Stat., p. 72S, c. 157), requires all deeds or instruments in writing for the transfer or assignment of copyrights, to be acknowledged and recorded. At common law, independently of the statute, I have no doubt, the author of a manuscript might obtain redress against one who had sur- reptitiously got possession of it. And on general equitable principles, I see no objection to relief being also given, under like circumstances, by a court of chancery. But this is a pro- ceeding under the statute. The defendants contend that the complainant, by suffering copies of his manuscripts to be taken, abandoned them to the public. The principle is the same, it is alleged, in regard to copyrights and patents. And that a consent r permission of the author to use the manuscripts, is as fatai to his exclusive right, as the consent of the inventor to use the thing invented. Rundell v. Murray (Saunders v. Smith), 3 Mylne & C. 711, 73S, 730, 735; Millar v. Taylor, 4 Burrows, 186 (2303); Barfield v. Nicholson, 3 Sim. & S. i. To show the analogy between copvright and patents, the defendants cited Whitte- more v. Carter, i Gall. 478; Miller v. Sillsbee, 4 Mason, loS, in which the question considernl was, did the inventor suffer the things patented to go into public use without objec- tion? Walcot V. Walker, 7 Ves. i; Piatt v. Button, 19 Ves. 44S; Wyeth V. Stone, i Story, 273, Fed. Cas. number 18107. The seventh section of the act of the third of March, 1S39 (5 Stat. 354), declares that a purchaser from the inventor of the thing invented, before a patent is obtained, shall continue to enjoy the same right after the obtainment of the patent as before if, ami that such sale shall not invalidate the patent, unless there has been an abandonment, or the purchase has been made more than two years before the application for the patent. Before this act, a sale of the right would have been an abandonment to the public by the inventor. The decisions, therefore, referred to, do not apply to cases arising under this statute. A sale of the right is not an abandonment, if made within two OPERTV. lie author or to suffer and i^ned by such injunction to e act of the requires all r assignment At common t, the author vho had sur- ral equitable given, under this is a pro- by suffering d them to the , in regard to permission of his exclusive ing invented. Mylne & C. , i86 (2303); ,' the analogy cited Whitte- )ee, 4 Mason, I the inventor vithout objec- tton, 19 Ves. umber 18107. : March, 1S39 inventor of the II continue to atent as before it, unless there ;en made more atent. Before I abandonment ins, therefore, lis statute. A ie within two BARTLETTE V. CRITTENDEN. 269 years before the application for a patent, as the law now stands ; and It may be a matter of some ditllculty, within the above lim- itation of two years, to determine what act shall amount to an . a])andonment.' Where the act is accompanied by a declaration to that effect, there can be no doubt ; but if a sale be not an abandonment, a mere acquiescence in the use of the invention would seem not to be. Within the two years, to constitute an abandonment, the intention to do so must be expressed or nec- essarily implied from the facts and circumstances 01 the case. It is a question of intention, as to the extent of the license, of which we must judge, as we are called to do in other cases. iiut the limitation of two years does not apply in this case, should i. copyright be considered in principle identical with an invention of a machine, as more than two years have elapsed since copies of the complainant's manuscripts were taken with his consent. The question arises upon the facts stated, and must be decided on general principles. In the first place, there was no consent of the complainant that his manuscripts should be printed. That they were not prepared for the press is admitted. They were without index or preface, although, as alleged, they may have contained the substantial parts of the com- plainant's system which, in due time, he intended to print. Copies of the manuscripts were taken for the benefit of his pupils and to enable them to te-.ch others. This, from the facts and circumstances of the c;Kse> seems to have been the extent of the complainant's consent. It is contended that this is an abandonment to the public, and is as much a publication as printing the manuscripts. That printing is only one mode of publication, which may be done as well by multiplying manuscript copies. This is not denied, but the inquiry is. Does such a publication constitute an abandonment? The complainant is, no doubt, bound by this consent, and no court can afford him any aid in modifying 01 withdrawing it. The students of Bartlette who made these copies have a right to them and to their use as originally intended. But they have no right to a use which was not in the comtemplation of the complainant and of themselves when the consent was first given. Nor can they, by suffering others to copy the manu- scripts, give a greater license than was vested in themselves. 270 MOLES OF OBTA.N.XG T.TI.E TO PERSONAL PROPERTY. In England, if nn invention be pirated and given to the public, it prevents an inventor from obcaining a patent. But this ,s not the construction of our laws. If an inventor of a mach.ne sell it or acquiesce in its public use not vvithn. the hm.tat.on of the two vears, he forfeits his rights. He must be (ul.gent m making known and asserting his right where it has -rrepffously got into the possession of another, or he abandons ,t This was the settled rule before the act of 1839, ^'hI >t would seem thnt cases which do not come within the provisions of that act must be governed by the old rule. No length of time where the invention does not go into public use, can mvahdate the n.ht of the inventor. He may take his own tuTie to perfect hi"; discovery and apply for a patent. And the same prn^cple applies to the manuscripts of an author. If he perm, cop:e to be taken for the gratitication of his friends, he does not authorise those friends to print them for general use. Ih.s is the author's right irom which arises the high motive of pecuniary profit and literary reputation. When the inventor consents to the construction and use of his machine, he yields the whole vnlue of his invention. But an author's manuscripts are very different from a machine. As manuscripts in modern times, they are not and can not be of general use. Popular lee ures may be taken down verbatim, and the person taking them down has a right to their use. He may, in this way, perpetuate the instruction he receives, but he may not print them The lecturer designed to instruct his hearers, but not the public at laree Any use, therefore, of the lectures which should operate iniuri'ouslv to the lecturer would be a fraud upon him for which the law would give him redress. He can not claim a vested right in the ideas he communicates, but the words and sentences iirwhich they are clothed belong to him. It is contended that the manuscripts are incomplete, and it published in their present state could not be protected by a copvri<^ht. That an unfinished manuscript or book which JL only a part of the thing intended to be written or pub- lished can be of no value, and if printed no relief could be given as no damage would be done. That the parts of a machine in the process of construction, if pirated, would give no right to an injunction by the inventor. If the manuscript or machine referred to consisted of a mere fragment which LOPERTY. to the public, But this is of a machine ; limitation of be diligent in iurreptitiously Ions it. This it would seem )ns of that act if time, where invalidate the me to perfect same principle permit copies ;, he does not 1 use. This is ve of pecuniary tor consents to elds the whole cripts are very modern times, opular lectures ;ing them down perpetuate the tit them. The )t the public at 1 should operate n him for which : claim a vested Is and sentences omplete, and if protected by a or book which written or pub- relief could be the parts of a ited, would give he manuscript or fragment which FOLSOM V. MAUSH. S71 embodied no principle and pointed to no design, the piracy of it would afford no ground of relief. But such is not the character of complainant's manuscripts. They may not be complete for publication. Some explanatory notes may be wanting to assist the reader in comprehending the system. This information was communicated by lectures and for tlip purpose ot instruction in that mode, the notes were unnecessary, liut the caids contain the frame work of the system. The substratum is there and so exemplified as to show the principle upon which it is constructed. That it was valujible is shown from the fact of the cards having been used by the defendants in teaching the system and in publishing them as they liave done. The facts show the piracy beyond all doubt, and that it was done under circumstances which admit of little or no mitigation. The cards, as they well knew, had been for a number of years and were then being used by the complainant to instruct pupils. They had learned all they knew on the subject from the com- plainant. They probably knew that he intended to publish his plan. But this would, to some extent, at least supersede the necessity of personal instruction. In disregard of these con- siderations and of the obligations the defendants owed to the complainant, the publication was made. The court will allow an injunction unless a satisfactory arrangement shall be made between the parties. Consult— Pahner v. DeWitt, 47 N. Y. 532, 7 Am. Rep. 4S1 ; Keene V. Kimball, 16 Gray, 545, 77 Am. Dec. 426; Tompkins v. Halleck, 133 Mass. 32, 43 Am. Rep. 480; Crowe v. Aiken, 2 Biss. 208; Gottsberger v. Aldine Book Co., 33 Fed. Rep. 381. § 55. Same— What is an infringement— Property in pri- vate letters. FOLSOM V. MARSH. [2 Story, 100.] Circuit Court of the United States, District of Massachusetts, 1841. Story, J. This is one of those intricate and embarrass- ing questions, arising in the administration of civil justice, in which it is not, from the peculiar nature and character of the 372 MODES OF OBTAINING TITLE TO I'EHSOXAL PUOPERTV. controversy, easy to arrive at any satisfactory conclusion, or to lay down any general principles applicable to all cases 1 at- ents and copyrights approach, nearer than any other clas. o cases belonging to forensic discussions, to what .nay be called the mctaphvsics of the law where the distinctions ar., or, a least may be, very subtle and refined and sonietunes almost ev'anescent. In many cases, indeed, what constitutes an infringe- ment of a patented invention, h sutlkiently clear and obvous and stands upon broad and general agreements and differences; but in other cases the lines approach very near to each othe.-, ,nd sometimes become almost evanescent, or melt mto each other. So in cases of copyright it is often exceedingly obvious that the whole substance of one work has been copied from another with slight omissions and formal differences only, which can be treated in no other way than as studied evasions ; whereas, in other cases the identity of the two works in sub- stance, and the question of piracy often depend upon a nice balance of the comparative use made in one of the materials of the other; the nature, extent, and value of the materials thus used; the objects of each work; and the degree to which each write; may be fairly presumed to have resorted to the same common sources of information, or to have exercised the same common diligence in the selection and arrangement of he „,aterials. Thus, for example, no one can ^^o^^t that a veviewer may fairly cite largely from the original work, if his design be really and truly to use the passages for the purposes o fair and reasonable criticism. On the other hand, it is clear that if he thus cites the most important parts of the work with a view, not to criticise, but to supersede the use of the origina work and substitute the review for it, such a use will be deemed n law a piracy. A wide interval might of course exist between these two extremes, calling for great caution and mvolvmg great difficulty, where the court is approaching the cbvid.ng Lddle line, which separates the one from the other, bo it has been decided that a fair and bona fide abridgment of an or.gi- na work is not a piracy of the copyright of the author. See Dodsley v. Kinnersley, i Amb. 403; mittingham v^VVooler 2 Swanst. 428, 430, 43 1^ «"'l "°^'^-' ^onson v. Walker, 3 Swnnst 673-679,'6Si. But, then, what constitutes a fair and b rfide Ibric^'ment in the sense of the law, is one of the most [•ERTV. ision, or to ascs. I'at- icr clasp of y be called arj, or, at mes almost an infrinp^e- and obvious differences; each other, It into each gly obvious copied from ences only, :d evasions ; orks in sub- upon a nice materials of latcrials thus which each to the same cd the same nent of the loubt that a , work, if his the purposes nd, it is clear le work with f the original ill be deemed exist between md involving the dividing er. So it has t of an origi- author. See im V. Wooler, V. Walker, 3 ites a fair and ne of the most KOLSOM V. MAKSII. 273 ditticult points, under particular circumstances, which can well arise for judicial discussion. It is clear that a mere selec- tion or different arrangement of parts of the original work so as to bring the work into a smaller compass will not be held to be such an abridgment. There must be real substantial condensa- tion of the materials, and intellectual labor and judgment bestowed thereon ; and not merely the facile use of the scissors, or extracts of the essential parts, constituting the chief value of the original work. See Gyles v. Wilcox, 2 Atk. 141. In the present case the work alleged to be pirated is the writings of President Washington, in twelve volumes, royal octavo, containing nearly seven thousand pages, of which the first volume contains the life of Washington by the lea;ned editor, Mr. Sparks, in respect to which no piracy is asserted or proved. The other eleven volumes consist of the letters o£ Washington, private and official, and his messages and other public acts, with explanatory notes and occasional illustrations by the editor. That the original work is of very great, and, I niav almost say, of inestimable value, as the repository of the tlioughts and opinions of that great man, no one pretends to doubt. The work of the defendants is in two volumes, duo- decimo, containing eight hundred and sixty-six pages. It con- sists of a life of Washington, written by the learned defendant, the Rev. Charles W. Upham, which is formed upon a plan different from that of Mr. Sparks, anrl in which Washington is made mainly to tell the story of his own life, by inserting there- in his letters, and his messages, and other written documents, with such connecting lines in the narrative as may illustrate and explain the times and circumstances and occasions of writing them. Now, as I have already said, there is no complaint that Mr. Upham has taken his narrative part, substantially, from the life by Mr. Sparks. The gravamen is, that he has used the letters of Washington, and inserted, verbatim, copies thereof from the collection of Mr. Sparks. The master finds by his report, that the whole number of pages in Mr. Upham* s work, corresponding and identical with the passages in Mr. Sparks' work, are three hundred and fifty-three pages out of eight hun- dred and sixty-six, a fraction more than one third of the two volumes of the defendants. Of these three hundred and fifty- three pages, the report finds that three hundred and nineteen pages consist of letters of Washington, which have been taken j8 374 MODES OK OIVIAINING TITLE TO PEUSONAL I'ROI'EUTY. from Mr. Sparks' work, and have never been publisned before; namely, Mxty-four paj,a-s are ollkial letters and documents a.ul two hundred and f.fty-Hve pages are private betters of Wash- i.Mnon. The question, therefore, upon this admitted state of the facts resolves itself into the point whether such a use, m the defendant's work, of the letters of Washington, constitutes a niracy of the work of Mr. Sparks. , , , . It is objected, in the first place, on beh.ilf of the defendants, that the letters of Washington are not, in the sense of the law, proper subjects of copyright for several reasons : i'7r./, because they are the manuscripts of a deceased person, not injured by the publication thereof; sccomU because they are not literary compositions and, therefore, not susceptible of being literary property, nor esteemed of value by the author; tlnrd, because thev are in their nature and character cither public or official letters or private letters of business; and,>//rM, because they were designed by the author for public use and not for copy- ric^ht or private property. Now, in relation to the last objection, it"is most manifest that President Washington deemed them his own private property and bequeathed them to ^"^ -P^-^' \»;'-' late Mr. Justice Washington, through whom the late Mr. Chief Justice Marshall and Mr. Sparks acquired an interest therein ; and . s appears from the contract between these gentle- „,en annexed to the report, the publication of these writings ,vas undertaken by Mr. Sparks as editor for their joint benefit, and the work itself has been accomplished at great expense and labor, and after great intellectual efforts ^'"^ ---y P^^^'^"' and comprehensive researches, both at home and abroad. The miblication of the defendants, therefore, to some extent must be injurious to the rights of property of the representatives and assignees of President Washington. Indeed, as we shall ;:s'ently see, congress have actually purchased these very Lters and manuscripts, at a great price, for the benefit of the nation, from their owner and possessor under the will of Mr. " ic Washington, as private and most valuable proper y^ That President Washington, therefore, intended them exclusively for public use as a donation to the public or did not esteem them of value as his own private property appears to "e to be a proposition completely disproved by the evidence Unless, indeed, there be a most unequivocal dedication of )1'ERTY. ined before ; umcnts, and rs of Wash- tted state of a use, in the constitutes ii ; defendants, ; of the law, V/'i/, because 3t injured by ; not literary )eing literary lird, because lie or official because they not for c(jpy- last objection, itned them his i nephew, the the late Mr. d an interest 1 these gentle- these writings joint benefit ; great expense d very patient abroad. The le extent must jsentatives and , as we shall ed these very ; benefit of the he will of Mr. lable property, ntended them ublic or did no* ;rty, appears to y the evidence. 1 dedication o£ FOLSOM V, MAIISII. 3/3 private letters and papers by the author, cither to the public or to some private person, I iK^ld that liic author has a properly therein and that the copyright thereof exclusively belongr, to him. Then as to the supposed distinction between letters of business or of mere private or domestic characters and letters which, from their character and contents, are to be treated as literary compositions, I am not prepared to admit Us sound- ness or propriety. It is extremely dilficult to say what letters are or are not literary compositions. In one sense all letters are literary, for they consist of the thoughts and language of the writer reduced to written characters, and show his style and his mode of constructing sentences and his habits of compo- sition. Many letters of business also embrace critical remarks and expressions of opinion on various subjects, moral, religious, political, and literary. What is to be done in such cases ? Even in compositions confessedly literary the author may not intend, nay, often does not intend them for publication ; and yet no one on that account doubts his right of property therein, as a sub- ject of value to ,,ii.. >lf and to his posterity. If subsequently published by his representatives, would they not have a copy- right therein. It is highly prob.ible that neither Lord Chester- field, nor Lord Orford, nor the poet Gray, nor Cowper, nor Lady Russell, nor Lady Montague ever intended their letu-rs for publication as literary compositions, although they abound with striking remarks and elegant sketches, and sometimes with the most profound as well as affecting exhibitions of close reflection, and various knowledge and experience, mixed up with matters of business, personal anecdote, and family gossip. There is no small confusion in the books in reference to the question of copyright in letters. Some of the dicta seem to suppose that no copyright can exist except in letters which are professedly literary; while others again recognize a much more enlarged and liberal doctrine. See Gods. Pat. (Ed, 1840. London) pp. 327-332 ; Gee v. Pritchard, 2 Swanst. 403, 405, 436, 437; Perceval V. Phipps, 2 Ves. & B. 19, 24, 25, 28. Without attempting to reconcile or even to comment upon the language of the authorities on this head, I wish to state ^vhat I conceive to be the true doctrine upon the whole subject. In the first place, I hold that the author of any letter or letters (and his representatives), whether they are literary compositions 276 MODES OF OBTAINING TITLE TO PERSONAL PROrERTV. or familiar letters or letters of business, possess the sole and exclusive copyrignt therein; and that no persons neither those to whom they are addressed, nor other persons, have any right or authority to publish the same upon their own account, or for their own benefit. But consistently with this rio^ht the persons to whom they are addressed may have, nay, must, by amplica- tion, possess the right to publish any letter or letters addressed to them upon such occasions as require or justify the publication or public use of them; bu. this right is strictly limited to such occasions. Gee v. Pritchard, 2 Swanst. 415. 4'9- Thus a person may justifiably use and publish in a suit at law or m equity, such letter or letters as are necessary and proper to establish his right to maintain the suit or defend the same. So if he be aspersed or misrepresented by the writer or accused of improper conduct, in a public manner, he may publish such nuts of such letters, but no more, as may be necessary to vin- dicate his character and reputation, or free him from vijust obloquy and reproach. If he attempt to publish such letter or letteA on other occasions, not justifiable, a court of equity wiU nrevent the publication by an injunction, as a breach of private confidence or contract, or of the rights of the author ; and a fortiori, if he attempt to publish them for profit; for then it is not a mere breach of confidence or contract, but it is a violation of the exclusive copyright of the writer. In short the persoi. to whom letters are addressed has but a limited right or special property (if I may so call it) in such letters as a trustee or bailee, for particular purposes, either of information or of pro- tectioi , or of support of his own rights and character. The lenerai property and the general rights incident to property belong to the writer, whether the letters are literary compositions or familiar letters, or details of facts, or letters of business The general property in the manuscripts remains in the writer .nd his representatives, as well as the general copyright. A fortiori, third persons standing in no privity with either party are not entitled to publish them, to subserve their own private purposes of interest or curiosity or passion. If the case ot Perceval v. Phipps, 2 Ves. & B. 2t, 2S, before the then vice- -hancellor (Sir Thomas Plumer) contains a different doctrine all I can say is, that I do not accede to its authority ; and I fall back upon the more intelligible and reasonable doctrine of AL PROPERTY. )ssess the sole and sons, neither those 3ns, have any right 3vvn account, or for is right the persons , must, by implica- or letters addressed stify the publication ctly limited to such 415, 419. Thus a a suit at law or in sary and proper to ifend the same. So writer or accused of e may publish such be necessary to vin- ee him from t njust ublish such letter or court of equity wiU s a breach of private : the author; and, a profit ; for then it is t, but it is a violation In short, the person mited right or special ;tters as a trustee or ^formation or of pro- and character. The incident to property I literary compositions r letters of business, remains in the writer eneral copyright. A vity with either party rve their own private sion. If the case of before the then vice- s a different doctrine, s authority ; and I fall easonable doctrine of FOLSOM V. MARSH. 277 Lord Hardwicke in Pope v. Curl, 2 Atk. 342, and Lord Opsley in the case of Thompson v. Stanhope, Amb. 737, and of Lord Keeper Hurley in the case of Duke of Queensberry v. Sheffeare, 2 Eden, 339 (cited 4 Burrows, 2329), which Lord Eldon hp.s not scrupled to hold to be binding authorities upon the point in Gee v. Pritchard, 2 Swanst. 403, 414, 415,419, 426, 427. But I do not understand that Sir Thomas Plumer did, in Percev.il v. Phipps, deny the right of property of the writer in his own letters ; and so he was understood by Lord Eldon in Gee v. Pritchard ; who, however, said that that case admitted of much remark. Indeed, if the doctrine were other- wise, that no person or his representatives could have a copy- right in his own private or familiar letters written to friends upon interesting political and other occasions, or containing details of facts and other occurrences passing before the writer, it would operate as a great discouragement upon the collection and preservation thereof; and the materials of history would become far more scanty than they otherwise would be. What descendant or representative of the deceased author would undertake to publish, at his own risk and expense, any such papers; and what editor would be willing to employ his own learning and judgment and researches in illustrating such works, if the moment they were successful and possessed the sub- stantial patronage of the public, a rival bookseller might repub- lish them, either in the same or in a cheaper form, and thus either share with him or take from him the whole profits? It is the supposed exclusive copyright in such writings which now encourages their publication thereof, from time to time, after the author has passed to the grave. To this we owe not merely the publication of the writings of Washington, but of Frank- lin and Jay and Jefferson and Madison and other distinguished statesmen of our own country. It appears to me that the copy- right act of 1S31, c. 16, sec. 9 (4 Stat. 436) fully recognizes the doctrine for which I contend. It gives, by implication, to the author or legal proprietor of any manuscript whatever, the sole right to print and publish the same, and expressly authorizes the courts of equity of the United States to grant injunctions to restrain the publication thereof by any person or persons without his consent. RSI 27S MODES OF OBTAINING TITLE TO PERSONAL PROI'ERTV. In respect to official letters, addressed to the government, or any of its departments, by public officers, so tar as the right of government extends from principles of public policy, to with- hold them from publication or to give them publicity, there may be a just ground of distinction. It may be doubtful whether any public officer is at liberty to publish them, at least in the same age, when secrecy may be required by the public exigencies, without the sanction of the government. On the other hand, from the nature of the public service or the charac- ter of the documents, embracing historical, military, or diplo- matic information, it may be the right and even the duty of the government to give them publicity, even against t'le will of the writers. But this is an exception in favor of the government, and stands upon principles allied to or nearly similar to the rights of private individuals to whom letters are addressed by their agents to use them and publish them upon fit and justifi- able occ sions. But assuming the right of the government to publish such official letters and papers under its own sanction and for public purposes, I am not prepared to admit that any private persons have a right to publish the same letters and papers, without the sanction of the government, tor their own pnvate profit and advantage. Recently the Duke of Welling- ton's dispatches have, I believe, been published by an able editor, with the consent of the noble duke and under the sanc- tion of the government. It would be a strange thing to say. that a compilation involving so much expense and so much labor to the editor in collecting and arranging the materials, might be pirated and republished by another bookseller, per- haps to the ruin of the original publisher and editor. Before my mind arrives at such a conclusion, I must have clear and positive lights to guide my judgment or to bind me in point of authority. However, it is not necessary in this case to dis- pose of this point, because of the letters and documents pub- lished by the defendants, not more than one fifth part are of an official character. Another and distinct objection urged on behalf of the defend- ants is that congress have purchased the manuscripts of these letters and documents and they have become public property, and may be published by anyone. An answer in part has been already given to this objection. Congress have, indeed, author- FOLSOM V. MARSH. 79 lOPERTV. ivernment, or s the right of licy, to with- iblicity, there be doubtful them, at least jy the public ent. On the or the charac- tary, or diplo- he duty of the he will of the I government, similar to the addressed by fit and justifi- government to own sanction admit that any me letters and , tor their own stantially to an injurious extent appropriated by another, that is sufficient, in point of law, to constitute a piracy pro tanto. The entirety of the copyright is the property of the author; and it is no defense that another person has appropriated a part and not the whole of any property. Neither does it necessarily depend upon the quantity taken whether it is an infringement of the copyright or not. It is often affected by other consider- ations, the value of the materials taken, and the importance of it to the sale of the original work. Lord Cottenham in the recent cases of Bramwell v. Ilalcomb, 3 Mylne & C. 737, 73S, and Saunders v. Smith, Id. 711, 736, 737^ adverting to this point, said: "When it comes to a question of quantity it must be very vague. One writer might take all the vital part of another's book, though it might be but a small proportion of the book, in quantity. It is not only quantity but value that is always looked to. It is useless to refer to any particular cases as to quantity." In short, we must often, in deciding questions of this sort, look to the nature and objects of the selections made, the quantity and value of the mrterials used, and the degree in which the use may prejudice the sale, or diminish the profits, or supersede the objects of the original work. Many mixed ingredients enter into the discussion of such questions. In some cases a considerable portion of the materials of the original work may be fused, if I may use such an expression, into another vvork, so as to be undistinguishable in the mass of the latter, which has other professed and obvious objects, and can not fairly be treated as a piracy; or they may be inserted as a sort of distinct and mosaic work into the general texture of the second work, and constitute the peculiar excellence thereof, and t'.ien it may be a clear piracy. If a person should, under color of publishing "Elegant Extracts" of poetry, include all the ROPERTY. is. It is said rials as suited it is doubtless le book. But not necessary lole of a work in form or in the original is uthor are sul)- nother, that is ro tanto. The author; and it ;d a part and it necessarily I infringement jther consider- importance of ttenham in the & C. 737, 73S, verting to this uantity it must e vital part of oportion of the t that is always Lilar cases as to ig questions of elections made, J the degree in lish the profits, Many mixed :ions. In some of the original ixpression, into the mass of the bjects, and can De inserted as a 1 texture of the nee thereof, and .lid, under color include all the it FOLSOM V. MAUSH. !Sl best pieces at large of a favorite poet, whose volume was secured by a copyright, it would be ditticult to say why it was not an invasion of that right, since it might constitute the entire value of the volume. The case of Mawman v. Legg, 2 Russ. 3S5, is to this pur- pose. There was no pretense in that case that all the articles of the encyclopedia of the plaintiffs had been copied into that of the defendants ; but large portions of the materials of the plaintiffs' work had been copied. Lord Eldon, upon that occasion, held that there might be a piracy of part of a work which would entitle the plaintiffs to a full remedy and relief in equity. In prior cases he had affirmed the like doctrine. In Wilkins V. Aiken, 17 Ves. 422, 424, he said: "There is no doubt that a man can not, under the pretense of quotation, publish either the whole or a part of another's book, though he may use, what in all cases it is difficult to define, fair quotation." In Roworth v. Wilkes, i Camp. 94, Lord Ellen- borough said: "A review will not, in general, serve as a substitute for the book reviewed ; and even then if so much is extracted that it communicates the same knowledge with the original work, it is an actionable violation of literary property. The intention to pirate is not necessary in an action of this sort; it is enough that the publication complained of is, in substance, a copy whereby a work vested in another is prejudiced. A compilation of this kind (an encyclopedia) may differ from a treatise published by itself, but there must be certain limits fixed to its transcripts ; it must not be allowed to sweep up aU modern works, or an encyclopedia would be a recipe for com- pletely breaking down literary property." The vice chancellor. Sir L. Shadwell, in Sweet v. Shaw, i Jur. (London) 212, 3 Jur. 217, referring to the remarks of Lord Ellenborough, cited by counsel, said: "That does not mean a substitute for the whole work. From what you state, suppose a book to contain one hundred articles and ninety-nine were taken, still it would not be a substitute." And in this very case he granted an injunction, being of opinion that there was prima facie, at law, an invasion of the plaintiffs' right, not only an injury, but also a damage to the plaintiffs in copying from several volumes of reports published by the plaintiffs, although eleven only had been copied verbatim, but a considerable 3S. MODES OF OBTAINING TITLE TO PERSONAL PROPERTY. number of what were called "abrklged cases" were, in truth, conies of the plaintiffs' volumes, with little or tnflms altera- tions It is manifest also from what fell from Lord Chancellor Cottenham, ir. Saunders v. Smith, 3 Myl- & C 7x1, tnat he entertained no doubt (although he did not deode the ponU) that there might be a violation of the copyr.ght ot volumes of reports by copying verbatim a part only of the cases reported. Much nit, in such cases, depend upon the nature of the new work, the value and extent of the copies, and the degi^e m which the original authors may be injured thereby. In Lewis Z Fullarton, 2 Jnr. (London) 127, 3 J"- 669..^ Beav 6 Lord Langdale, in the case of a typographical dictionary, held ih-M lugeW copying from a work in another book having a ^millr object wL I violation of that copyright although the same information might have been (but in fact was not) obtained from common sources open to all persons. On hat occasion he said: -None are entitled to save themselves trouble and expense by availing themselves for their own profit, of other men's works, still entitled to the protection of convrighf," and accordingly in that case he granted an inj, ic- ion al to the parts pirated, although it was admiUed or all hands, that there was much which was original m the new work. tL present case I have no doubt, whatever, that there is .n invasion of the plaintiffs' copyright ; I do not say designedly :: from bad intentions; on the contrary I entertain no doubt that it was deemed a perfectly lawful and justifiable use of the Plaintiffs' work. But if the defendants may take three hundred and nineteen letters included in the plaintiffs' copyright and exclusively belonging to them, there is no reason why another bookseller may not take other five hundred ^^f -' ^^ « ^•^^'^''. one thousand letters and so on, and thereby the plaintiffs convright be totally destroyed. Besides, every one must see thlt the work of the defendants is mainly founded upon these leiters, constituting more than one third of their work and imnar inc. to it its greatest, nay, its essential value. Without those leuers in its present form the work must fall to the eround It is not a case where abbreviated or select passages are taken from particular letters; but the entire letters are taken and those of the most interest and value to the public, Is illustrating the life, the acts, and the character of Washing- lOPERTY. ere, in truth, rifling altera- id Chancellor .711, that he de the pohit) )f volumes of ises reported, re of the new the degree in oy. In Lewis 9, 3 Beav. 6, ictionary, held )ook having a , although the 'act was not) sons. On that ive themselves for their own e protection of nted an inji ic- dmilted or all 1 the new work, n-, that there is say designedly ;rtain no doubt iable use of the e three hundred copyright and an why another ;rs, and a third, f the plaintiffs' y one must see ded upon these their work and ^alue. Without nust fall to the • select passages itire letters are le to the public, ter of Washing- :'OLSOM V. MAUSII. 2S3 ton. It seems to me, therefore, that it is a clear invasion of the rl"ht of property of the plaintiffs, if the copying of parts of a work, not constituting a major part, can ever be a v.ola. lion thereof; as upon principle and authority I have no doubt it may be. If it had been the case of a fan- and bona hde abridament of the work of the plaintiffs, it might have admitted of a very different consideration. I have come to this conclusion, not without some regret, that it may interfere in some measure with the meritorious labors of the defendants in their great undertaking of a series of works adapted to school libraries. But a judge is entitled in this case, as in others, only to know and to act upon his duty. I hope, however, that some means may be found to pioduce an amicable settlement of this unhappy controversy. The report of the master must stand confirmed and a perpetual injunction be awarded restraining the defendants, their agents, servants, and salesmen from farther printing, publishing, selling, or dis- posing of any copy or copies of the vvoi-k complained of: the "Life of Washington," by the Rev. Charles W Lpham containing any of the three hundred and nineteen letters of Washington, stated in the report of the master and never before published; and that it be referred to a master to take an account of the profits made by the defendants in the premises; with leave for either paity to apply to the court for farther directions. Consult-As to property in private letters, Denis v. Leclerc. i Mart. (L)"" 5 A-. Dec. 7'.; Hoyt v. Mackenzie, 3 Barb. Ch. 350, 49 A-- Dec 178 Grigsby v. Breckenridge, 2 Bush, 480, 92 An,. Dec. 507; Rice V Will ams, 3' Fed. Rep. 437- As to infringement, Story v. Holcombe, 4 McLean/ ie; List Pub. Co. v. Kellar, 30 Fed. ^^P" 773; M.- - Callaghan, 20 Fed. Rep. 441, "8 U. S. 617; Lawrence v^ ^---' ^}^'f^ ,; Emerson v. Davis, 3 Story, 768; Gilmore v. Anderson, 38 Fed. Rep. 846. 2S4 MODES OF OnTAINIXG TITLE TO PEIISONAL PROPERTY. § 56. Trade-marks— Consist of what. FILLEY V. FASSETT. [44 Mo. 168; too Am. Dec. 275.] Supreme Court of Missouri^ i86g. Currier, J. — In 1S51 the plaintiff employed N. S. Vedder, an extensive stove-pattern maker of Troy, New York, to design and construct for him a set or series of cooking stove patterns. The patterns were made as ordered, and in a form which resulted in the production of a cooking stove of a new and improved interior arrangement and construction, for which Vedder obtained letters patent which he assigned to the plaintiff. The plaintiff originated and applied to the stove the name "Charter Oak," which was so formed upon the patterns as to produce the name upon the manufactured article in com- bination with a sprig of oak leaves. The name and device was employed to distinguish and designate cooking stoves of the plaintiff's manufacture. The manufacture and sale com- menced the following year and has been followed up con- tinuously ever since, the sales from 1S53 to 1S67, both years inclusive, amounting to 1 19,226. These stoves were distributed broadl> through the western and southern country, and appear to have been highly popular and successful. The testimony shows that stoves are usually known in the trade by their distinctive names and designations, such as "Excelsior," "Climax," "Empire," "Charter Oak," etc.; and that they are advertised and bought and sold by such names and designations ; that when a stove is favorably received and acquires popularity in the market, and with those who use it, the peculiar name by which it is known and distinguished becomes a matter of importance to the manufacturer and of great value to him in the prosecution of his business. The extent of the plaintiff's sales of his "Charter Oak" cooking stove indicates its reputation and popularity and the consequent value to him by which it was known. But the answer denies that the plaintiff first appropriated and used that name in such connection as indicating the source and origin of the article to which it was applied, denies ROPERTY. FILLEY V. FASSETT. 2S5 ^J. S. Veddcr, ew York, to cooking stove ami in a form itove of a new ;ion, for which signed to the > the stove the jn the patterns article in com- ne and device king stoves of and sale com- owed up con- 167, both years vere distributed ry, and appear known in the itions, such as r Oak," etc.; by such names ly received and ose who use it, d distinguished facturer and of business. The Oak" cooking the consequent St appropriated iiting the source applied, denies that his use of it has been either exclusive or unuitcrruptcdly continuous, and avers that the contrary of all this is true. Upon these issues a large mass of testimony was taken trom which the following facts are deduced: First. Ihat the plaintiff's appropriation of the name "Charter Oak," as already detailed, was prior in point of time to any similar use of that name by any other parties. The testimony is clear and entirely satisfactory on this point. Second. That, notwithstanding such appropriation by the plaintiff, different manufacturers in Cincinnati and in that region at different times subsequently to 18^3, applied the same name to cooking stoves of their manu- facture, but without the consent of the plaintiff in any instance and without h)'. knowledge except in two instances. The hrst of these two occurred in 1S54 and was at once checked by the plaintiff and abandoned by the Cincinnati manufacturer, on being apprised of the plaintiffs rights. The other is that of the manufacturer of the stoves, the sale of which, with the plaintiff's alleged trade-mark upon them, is sought to be enjoined in this suit; and the suit was commenced immediately after the facts came to the knowledge of the plaintiff. T/iu-d. That J S & M. Peckham, of Utica, Oneida county, New York, manufactured in Utica a "Charter Oak" cooking stove from 1852 to 1857, and then abandoned it, and never after resumed the manufacture of that particular stove. The Peck- hams purchased their patterns for this stove of said N. b. Veddcr, Filley consenting to the sale on condition that certain alterations were first made in the patterns. This transaction does not appear to have included specifically the right to use the plaintiff's trade-mark, nor does it appear that FiUey was ever made aware that the purchasers in fact used 't. ihe desi-n of the stove was patented and the transactions with the Peclthams involved the granting to them the right to manu- facture, in Oneida county, its patented features; that with the right to sell in a defined territory would seem to have con- stituted the inducement to the purchase of these patterns rather than others. The particular name which the plaintiff had originated for the stove, which he proposed to make, does not appear to have been mentioned in the negotiations with the reckhams, or to have been in the minds of the parties. It ought not, therefore, to be inferred from the mere permission 386 MODES OK OnTAlNMNG TITLE TO PERSONAL rnOI'EKTY. granted to Vcdiler to sell out the use of his trade-mark, par- ticularly ilia contest with third parties; the I'cckhanis them- selves disavowing all right, claim, or interest in the trade- nark, either as originators or purchasers. Fourth. That the plain- tiff's use of the trade-mark claimed by him has been continuous and uninterrupted since its Fust adoption by him to the present time. The fact that the parties in Cincinnati or elsewhere manu- factured "Charter Oak" stoves and sent them into the market to compete with the plaintiff's manufactures in no way aids the defense, unless it appears that the plaintiff assented to or acquiesced in such infringements upon his rights; and as already indicated, there is nothing in the case to establish a dedication or abandonment to the public on the part of the plaintiff, of his supposed rights of property in the alleged trade-mark. There is no testimony having that tendency, except the trans- action with the Peckhams and that is insufficient. In Gillott v. Esterbrook, 47 Barb. 455, it appeared that an imitation of the plaintiff's mark had been in use for many years, and that for twenty years he had issued printed "cautions" to the public on the subject, implying knowledge on his part of such use, but that was held no acquiescence, although the plaintiff had neg- lected to institute prosecutions. The depredations of others upon plaintiff's rights furnish no excuse to the defendants for similar acts on their part. It is rather an aggravation to the plaintiff that others have also injured him, and courts have not shown any disposition to encourage that line of defense. Woodbury, J., in Taylor v. Carpenter, 3 Wood. & M. S, held this language: "There is something abhorrent in allowing such a defense to a wrong which consists in counterfeiting another's marks or stamps, defrauding others of what had been gained by their industry and skill and robbing them of the fruit of their good name, merely because they have shown forbearance and kindness." See observations of Story, J., same case, 3 Story, 464. After this suit was commenced Rosenbaum & Co., who seem to be real parties defending against the action, made an attempt to appropriate the disputed trade-mark to their own use, in due form of law, by filing in the office of recorder of deeds in the county of St. Louis, a written claim thereto under the act of March, 1866. Gen. Stats. 1S65, p. 912. A certified copy of ^OI'EUTY. Llo-niark, par- ;khnnis tliein- le trade- nark, hat the phiin- en continuous to the present ;\vhcre manu- to the market ) way aids the isented to or and as already h a dedication le plaintiff, of \ trade-mark. :ept the trans- In Gillott V. nitation of the 3, and that for I the public on such use, but intiff had neg- hts furnish no ir part. It is lers have also disposition to , in Taylor v. i: "There is se to a wrong 4S or stamps, their industry ir good name, ind kindness." y, 464. Co., who seem ade an attempt \\n use, in due )f deeds in the ider the act of ;rtified copy of FII.I.KY V. lASSKTT. 2S7 the paper so filed, declaring that said Rosenhaum & Co. had adopted "Charter Oak" as their tra.le-mark for stoves manu- factured l.v them, was given in evidence and relied upon as showing their title to the trade-mark against Fillcy, who had never filed any such document. If this proceeding can be m-ulc available for the purpose intended, it may be regarded as an entirely new and improved method of disposing of trade- mark cases, and of appropriating the property of others, the subject of such suits, without risk or inconvenience and at very slight cost. , , . . 1 J A glance at the statute, however, shows that it wr.s mtended for no such purpose. It was not designed in the slig'.test par- ticular to weaken or abridge any existing rights, m any future right to a trade-mark which might be acquired m the usual way or to legalize in any form or measure piracy m trade- marks. Property in a trade-mark is acquired at common law only by appropriation and use, and then only of such names, words, and devices as may be held to be adapted to point out the true source and origin of the goods to which such marks are applied. The statute widens the range of selection and authorizes the mechanic or manufacturer to adopt any name or device he pleases and to foreclose any controversy on the sub- ject by writing out and filing with the recorder, as the law pro- vides, an accurate description of the name, device, etc., that may have been chosen. But such paper is to be filed in the county where the goods, etc., are to be manufactured or prepared. It is not perceived how this can be made to apply to Rosenbaum & Co.'s stoves, which are manufactured in another stUe. The statute has no application to the facts of the present litigation. Nor will any fair construction of it war- rant the appropriation by one party of an existing trade-mark, the title and ownership of which is in another party. But it is objected that the words "Charter Oak," with the accompanying device, lack the requisite ingredients or charac- teristics of a trade-mark, and, therefore, it is insisted that he plaintiff could acquire no exclusive right to their use for that purpose The books are full of authorities establishing the proposition that any contrivance, design, device, name, symbol, or other thing may be employed as a trade-mark which is adopted to accomplish the object proposed by it; that is, to 2SS MODKS OF OnTAININO THI.E TO I'KIISONAI, PrtOI'ERTV. point out the true source and ori<,Mii of the poods to which suid mark is applied, or even to point out ami dosipnate a dialer's place of husiness. distinpuishinp it from the business locality of other dealers'. The mark, however, must possess the rc(iuisite characteristics, pointing out the source and origin of the poods, and not be merely descriptive of the style, (|uality, or character of the pooils themselves. Thus, it has repeatedly been held that where the name or device employed had, from use or other cause, come to be descriptive of the poods manufactured or sold, their (|uality and use, such name or device was ineffec- tual and could not be upheld as a trade-mark. It was so as to the letters "A. C. A." in the leadinp and famous case of the Amoskeag Mfp. Co, v. Spear, 3 Sandf. 599; as, also, in Stokes V. Landpraft, 17 Harb. 60S, and in various other cases cited by the defendants. But these authorities have no appli- cation to the mark claimed by the plaintiff, for the name "Charter Oak" with the combined device, in no possible view or application of them, are either descriptions or suppestive of the style, character, or qualities of a cast iron cooking stove. In their natural sipnificancy, import, or symbolism or in the use made of them prior to the plaintiff's appropriation of them as a trade-mark, they were as far removed as can well be imapined from conveyinp any such application or meaninp. And that constitutes one of their virtues as a trade-mark. Fettridpe v. Merchant, 4 Abb. Pr. 158; Perry v. Truetitt, 6 Bcav. 66; Coffren v. Hrunton, 4 McLean, 516. The general rule respecting the characteristics of trade-marks has already been given. The following names and designa- tions, among many others, have been held to come within that rule. As pointinp to a hotel, "Irving House," Howard v. Henriques, 3 Sand. 726; "Revere House," Marsh v. Billings, 7 Cush. 333, 54 Am. Dec. 723; as pointing to a manufac- turer or dealer, "Cocaine," Burnett v. Phalon, 9 Bosw. 192; "Ilowe," Howe v. Howe M. Co., 50 Barb. 236; "Akron," the name of a town, Newman v. Alvord, 49 Id. 599 ; "London Conveyance Company," Knott v. Morgan, 2 Keen, 220; "303," the designation of a particular pen, Gillott v. Ester- brook, 47 Barb. 471 ; "Bell's: Life," the name of a newspaper, Clement v. Maddick, i Giff. 98; "Roger Williams Long Cloth," Barrows v. Knight, 6 R. L 434, 78 Am. Dec. 452; Mi 'Uf)I'ERT\". > to which siiid iiatf a (Ualcr's I1CS8 locality of s the rccjuisite 1 of the jjoods, y, or character (lly been held , from use or inanufactiircd cc was iiieffec- ^t was so as to us case of the i; as, also, in us other cases lavc no appli- for the name ) possible view ' sufjgcstive of cooking stove, lism or in the iation of them s can well be n or mcaninfj. a trade-mark. r V. Truefitt, 6 of trade-marks 3 and dcsigna- me within that ," Howard v. rsh V. Billings, to a manufac- , 9 Bosw. 193; 36; "Akron," 599 ; "London 2 Keen, 220; miott V. Ester- if a newspaper, Villiams Long im. Dec. 452 ; KII.I.KV V. FASSETT. 3S9 .'Day k Martin," C.oft v. Day, 7 Bcav. S9. The name and device selected by the plaintiff were adopted to point out the true source and origin 'of the stoves to which he applied them, and were therefore possessed of the requisite characteristics of a trademark. By the adoption and use of that mark, he acciuired a property interest therein which the courts will pro- tect. Have the defendants invaded the rights of the plaintiff in this behalf? The defendants accumulated in the St. Louis market a quantity of the Rosenbaum & Co. stoves with the nam^ "Ch.-.rter Oak," upon them, which they held for sale as "Charter Oak" stoves. They were aware o* the plaintiffs proprietorship of the "Charter Oak" trade-mark and were pror.-eding to sell in defiance of plaintiff's ri{:;hts. In this condition of things the present suit was instituted and r.n injunction granted, restraining the defendants from the pro- posed sale. The only question raised on this branch of the case is, whether the use of the name "Charter Oak" separated from the odier parts of the plaintiffs mark, amounted to an infringement of his rights, assuming his ownership of the name as a trade-mark in combination with the device of oak leaves. On this point there can be no reasonable doubt. The plam- tiff s stoves were not conspicuously known by the particular device which surrounded the name upon them, but by the name itself. That was the conspicuous clement in the mark. By that name the stove was bought and sold, and known in the western and southern markets. It was the prominent, essential, and vit.il feature of the plaintiff's trade-mark. That name the defendants and their principals appropriated bodily, and applied it to their stoves, and sought to acquire the sole and exclusive use of it bv filing their claim in the recorder's office under the statute. That shows their appreciation of the value of the name and their purpose, not only to use it themselves, but to exclude the originator of it from its use. Granting Filley's exclusive right, there can be no doubt that the things done and proposed by the defendants were of injurious ten- dency, and that the name "Charter Oak," as employed by them, was eminently calculated to mislead buyers as to the true source and origin of the stove to which the defendants applied that name. If the name, as used by them, was calculated to '9 290 MODES OF OBTAINING TITLE TO PERSONAL PROPERTY. mislead, the intention to deceive is to be inferred therefrom. Fettridge v. Merchant, 4 Abb. Pr. 159; Crawshay v. Thomp- son, 4 Man. & G, 385. The imitation of an original trade-mark need not be_ exact or perfect ; it may be limited and partial. Nor is it r.quis.te that the whole should be pirated. Nor is it necessary to show that anyone has in fact been deceived or that the party complamed of made the goods. Amoskeag Mfg. Co. v. Spear, 2 Sand. 607; Clark V. Clark, 25 Barb. 79; Edleston v. Vick, 23 Eng. L &Eq c;^, S4; Coats V. Holbrook, 2 Sand. Ch. 597. ^or is'it necessary to prove intentional fraud. "If the court sees that complainant's trade-marks are simulated in such a manner as probably to deceive customers or patrons of his trade or bus- iness, the piracy should be checked at once by injunction. Coffren v. Brunton, 4 McLean, 519; Partridge v. Menck, 2 Barb. Ch. 103, 47 Am. Dec. 281. , . ,u„ The result is that the judgment ot the circuit court must be affirmed. COKSULT-As to what may be adopted as trade-mark, St-lchberg v. Ponce 12S U. S. 686; Woodward v. Lazar, 21 Cal. 447, 02 Am. Uec. ,°T^lLon V. Ber;y, 50 Md. 591, 33 Am. Rep. 328; Amos.eag Mtg. Co V Trainer, loi U. S. 51; Adams v. Heisel, 31 Fed. Rep. 279; ^^W" ver' Crystrmue Co. v. Hubbard. 32 Fed. Rep. 388, Candee v. Deere. rilT 3^5 An. Rep. 136; IHer v. Abrahams, 82 N. Y. 519, 37 Am. Rep 589: Anheuser-Busch Brewing Co. v. Piza, .4 ^ed- Rep. 149; cluot V Esterbrook, 48 N. Y. 376, 8 Am. Rep. 543; Metcalfe v. B ant 86 Ky. 33x, 9 Am. St. Rep. 282. As to what is an .nf-ngem^n Avery v. Meikle, 85 Ky. 435, 7 Am. St. Rep. 604; Gor^^-^y^'J'^; lace Id Wall, sn ; McCann v. Anthony, 21 Mo. App. 83, fc>haver v. lace, 14 wau. 511, ,„, . pierce v. Guittard, 68 Cal. 63, 58 Shaver, 54 Iowa, 20S, 37 Am. Rep. 194, rierce "-^ ' Am Rep I : Evans v. Von Laar, 32 Fed. Rep. 153; Poph^"^ ^- ^ol^, 66 NY 67, 23 Am. Rep. 72; Morgan's Sons v. Tro.ell, 89 N. Y. 292, 4^ Am. Rep. 294. _^ § 57. Sam©— Names of individuals. MENEELY v. MENEELY. [62 N. Y. 427 ; 20 Am. Rep. 489-] Court of Appeals of New York, 187$' Action by Edwin A. Meneely and George R. Meneely against Clinton H. Meneely and George H. Kimberly to re- B9M ^M SONAL PROPERTY. ,e inferred therefrom. Crawshay v. Thomp- k need not be exact or Nor is it r.^quisite that necessary to show that the party complained ::o. V. Spear, 3 Sand. ;ston V. Vick, 23 Eng. Sand. Ch. 597. Nor d. "If the court sees lated in such a manner ■ons of his trade or bus- t once by injunction." ?artridge v. Menck, 2 hat the judgment of the urt must be affirmed. . trade-mark, Stalchberg v. 21 Cal. 447> 8' ^.m. Dec, Rep. 328; Amos!;eag Mfg. i\, 31 Fed. Rep. 279; Saw- Lep. 388; Candee v. Deere, ms, 82 N. Y. 519, 37 A'"- , Piza, 24 Fed. Rep. 149; ti. Rep. 543; Metcalfe v. ;o what is an infringement, . 604; Gorham Co. v. Wal- I Mo. App. 83; Shaver v. e V. Guittard, 68 Cal. 63, 58 ;p. 153; Popham V. Cole, 66 V. Troxell, 89 N. Y. 292, 42 is. [EELY. Lep. 489-] ; Tork, l8rS' id George R. Meneely rge H. Kimberly to re- MENEELY V. MENEELY. 191 Strain the defendants from using the name "Meneely' m the.r business of bell founding which they conducted in Tn.s under the firm name of "Meneely & Kimberly." The plamt.ffs were engaged in the business of bell founding in West Troy. This business was established by Andrew Meneely, the father of the plaintiffs and of the defendant, Clinton H. Meneely. The father, at his de-^^'i in 1S51, bequeathed the business and good will to the plaintiffs, charged, among other things, with the sup- port of said Clinton H. Meneely until he should attain to the age of twenty-one years, and also charged with the payment of sev- eral specific legacies, including one to Clinton H. of $3,000. The plaintiffs discharged the obligations imposed by the will, and continued the business ot bell founding under the name of "E A. & G. R. Meneely." Their foundry was known as the ♦'Meneely Bell Foundry," and their bells became widely known as the "Meneely" bells and the name of "Meneely" m connection therewith had become a designation or trade-mark of great celebrity and value to the plaintiffs. In 1870 the defendants Clinton H. Meneely and George H. Kimberly entered into a copartnership for the purpose of manufacturing, at the city of Troy, bells of the same description, manufactured and sold by the plaintiffs; the name of the partnership so formed being "Meneely & Kimberly." The referee found that the defendants by the use of the nam of "Meneely" in the establishment of their bell foundry at Troy, and in m'anufacturing and selling bells at Troy under the name of Meneely & Kimberly, expected and intended to derive a profit and advantage by reason of the good reputation and celebrity in bell founding given to that name throughout the country, by the said Andrew Meneely and the plaintiffs. That the use of the name of Meneely by the defendants as hereinbefore set forth, is calculater' ■> and does mislead per- sons who are not personally acquainted with the plaintiffs and defendants, nor with the respective locations of Troy and West Troy, and the difference between those places, into the belief that the defendants are the proprietors of the "Meneely Bell Foundry," carried on by plaintiffs; and such use of the name of Meneely by the defendants is injurious to the plaintiffs' business of bell founding. , , . • And, as conclusions of law, that Andrew Meneely in his lifetime, acquired a property in and became the owner of the 293 MODES OF OBTAINING TITLE TO -ERSONAL PROPERTY. name "Meneely," as a valuable trade-mark in the business of bell founding. That the plaintiffs under and by the last will and testament of said Andrew Meneely, succeeded to the rights and property of the said Andrew Meneely, in said name of "Meneely" as a trade-mark in the business of bell founding. And that the defendants have no right to use the name "Meneely" in the business of bell founding at Troy, to the injury of the plaintiffs. And he directed judgment that an injunction issue restraining defendants from using the name and designation "Meneely" in the business of bell founding at Troy. The judgment entered on this report was reversed at a gen- eral term of the supreme court and plaintiffs appealed. Rapallo, J.— The injunction awarded by the decision of the referee restrained the defendants from in any way using the name and designation "Meneely" in the business of bell found- ing in the city of Troy. The name of one of the defendants is Meneelv, and he was engaged in the business mentioned. The necessary consequence of the injunction was to compel the defendant Meneely either to discontinue his business of bell founding at Troy or procure it to be conducted in the name of some other person. He was also absolutely prohibited from the use of his own name in his own business in any way. The bare statement of the scope of the injunction would seem to be sufficient to show that it ought not to have been granted, and that the judgment awarding it was erroneous. The cases referred to in its support fall far short of sustain- ing it. If the defendants were using the name of Meneely with the intention of holding themselves out as the proprietors and managers of the old established foundry which was being con- ducted by the plaintiffs and thus enticing away the plaintiffs' customers, and if with that intention they used the name in such a way as to make it appear to be that of the plaintiff's firm, or resorted to any artifice to induce the belief that the establish- ment of the defendants was the same as that of the plaintiffs, and, perhaps, without any fraudulent intent they had done acts calculated to mislead the public as to the identity of the estab- lishments and produce injury to the plaintiffs beyond that which resulted from the similarity of name, then the cases PROPERTY. the business of by the last will ed to the rights n said name of be'.', founding. use the name at Troy, to the dgment that an ising the name f bell founding versed at a gen- pealed. the decision of y way using the ss of bell found- he defendants is nentioned. The to compel Ihe business of bell in the name of prohibited from any way. njunction would not to have been s erroneous, short of sustain- of Meneely with proprietors and 1 was being con- ay the plaintiffs' the name in such laintiff's firm, or lat the establish- of the plaintiffs, ey had done acts itity of the estab- iffs beyond that , then the cases MENEKLY V. MENEELY. 293 referred to would sustain the proposition, not that a court of equity would absolutely restrain the defendant Meneely fro.n the L of his own name in any way or form, but simply that the court would enjoin him from using it in such a way as to dece ve the public and injure the plaintiffs. The manner of u ing the name is all that would be enjoined, not the smnple use of it; for every man has the absolute right to use h>s own „an.e in his own business, even though he may thereby mte - fere with or injure the business of another person bearmg the same name, provided he does not resort to any ^rt.fice or con- trivance for the purpose of producing the .mpress.on that the establishments are identical or do anything -f'^^'f ^J^ "';;- le.d Where the only confusion created is that which re ults ;„. the similarity of the names, the courts will not mterfere A person can not make a trade-mark of his own name and thu obtain a monopoly of it which will debar all other persons of the same name from using their own names m then- own ^"Thrprinciple is fully recognized in the cases cited :n the briefs of counsel. They have been so fully commented on in the learned opinion of my brother. Miller, J., delivered a general term, that I do not deem it necessary or proper again fo review them in detail. A reference to a ew of them will suffice. In the case of Croft v. Day, 7 Beav. 84, the intention of the defendants to imitate the blacking manufactured by the plaintiffs, under the name of Day & Martin and to sell it as S rs, w s apparent. The master of the rolls stated: 'My decision doe not depend on any peculiar or exclusive right the p attiffs have to use the name of Day & Martin, but upon ^he fact of the defendants using their names in ,^°""«'^^'°" .^^ V"' n circumstances and in a manner calculated to mislead the public and to enable the defendant to obtain, at the expense of Day's estate, a benefit for himself for which he is not ,n fair ^.d honest dealing entitled. * * » He has a right to carry on the business of a blacking manufacturer honestly and fairly; he has a right to the use of his own name. I will not do any- thing to debar him from the use of that or any other name cal- culaL to benefit himself in an honest way ; but I must prevent him from using it in such a way as to deceive and defraud the public." The form of the injunction was settled after argu- 294 MODES OF OBTAINING TITLE TO PERSONAL FIIOPEKTY. meiit. It did not restrain the defendants from the use of their names of Day & Martin, but from selling blacking in bottles having labels so contrived as to represent it to be the same as that sold by the plaintiffs. Rodgers v. Norrill, 5 Mar. Gr. & Scott, 109, was an action for damages. The defendant used not merely the firm name of the plaintiffs, but their trade-mark of a crown with the letters V. and R. on either side above the name; and the verdict was sustained on that ground. Sykes V. Sykes, 3 B. & Cr. 541, was a similar action and decided on the same principle. The plaintiff had adopted the mark "Sykes patent," which the defendant imitated in order to denote that the goods sold by him were of plaintiffs manu- facture ; the defendant had never had any patent and he imitated the plaintiff's stamp. In Holloway v. Holloway, 13 Beav. 209, the defendant did not merely sell his pills as "H. HoUoway's Pills," but sold them in boxes and with labels and wrappers made in imitation of those of the plaintiff J.nd manufactured for the express pur- pose of deceiving. The court in that case said: "The defendant's name being Holloway, he has a right to constitute himself a vendor of HoUoway's Pills and Ointment, and I do not intend to say anything tending to abridge that right; but he has no right to do so with such additions to his own name as to deceive the public, and make them believe he is selling the plain- tiff's pills and ointment." The injunction in that case was not against selling pills as "HoUoway's Pills," etc., but against selling them as such put up in boxes, etc., having labels so contrived or expressed as by colorable imitation or otherwise, to represent them to be the same pills, etc., as were sold by the plaintiff. In Clark v. Clark, 25 Barb. 79, the plaintiff had adopted a device which contained the name Clark & Co. The defendant's was a copy of the plaintiff's device except that it contained the name of J. Clark, Jr., & Co. The injunction was sustained as to the device, but not as to the name. In Faber v. Faber, 49 Barb. 357, an injunction restraining the defendant from using his own name as a mark upon his pencils, though interfering with a similar business previously established by another person of the same name was refused, and 1 find no precedent for such an injunction. See, also. Burgess v. Burgess, 17 Eng. L. and E. 257, and Meriden Britannia Co. v. Parker, PROPEUTY. he use of their king in bottles be the same as 5 Mar. Gr. & defendant used heir trade-mark side above the )und. lilar action and had adopted the nitated in order ilaintiff's manu- patent and he e defendant did Pills," but sold lade in imitation the express pur- e said: "The |ht to constitute itment, and I do lat right; but he own name as to selling the plain- hat case was not etc., but against having labels so on or otherwise, as were sold by the plaintiff had ark & Co. The ce except that it The injunction the name. In n restraining the upon his pencils, iously established jed, and 1 find no irgess V. Burgess, ia Co. V. Parker, MENEELY V. MENEELV. 295 . Q r 1 2 Am. Rep. 401. In the case last cited •JO Conn. 450; S. C, 12 J\m. ivci^ ^ Rf,„prs Bros, the plainJff's trade-mark or stamp was "1S47, Roge'-s Bros rZ rsB,t."sLlLm the whole or a par, The court Imc. wt; a 1 the ease, upon the subject. I£ the evWcnee "I a a„ra,teu,pt by the defendants, by means of catalogues :X any orercontrLnce, to induce the belief that the firm Z Meneely & Kiml,erly was the successor of Andrew Meneely ™ rte ra^agcrs of ihe plaintiffs' bell foundry, those aCs we """"Kf retrained ; but no such injunction was granted „,gh. have been restraned „Meneely- in any way Is* .h!t'wa,^e:joted, and that w^^ the very thing which *r r:*ar:i:etn:::l- term did Hgh. m reversing .he '--r t :^z '^uh Si rd^rmrir;: Sf/'for the defendants in pursuance of the ..ipulaUon. A„ concur, Mi"er,^.. no. si.';^^^- ^^^ ,__^^^^„, _^,,„^,y. r-M ,„ , Hnnnewell, 122 Mass. 148; Rogers v. Rogers, COKSULT-Gdman V. Hunnew^ll, ^rust, 3 Hun, 627; Frazer 53 Conn. "^' 55^^™- f;V 147, 2 An,. St. Rep. .47; Landreth v. V. Frazer Lub. ^''^ "^J",j,'Sen Britannia Co. v. Parker, 39 Conn. V. Bonyon, i Mo. (App.) 241. 396 MODES OF OBTAINING TITLE TO PERSONAL PROPEIITV. § 58. Same— Descriptive -words. CELLULOID MANUFACTURING CO. v. CELLONITE MANUFACTURING CO. [32 Fed. Rep. 94.] United States Circuit Court, District of Nciv Jersey, 1887. Bradley, J. — The bill of compLiint in this case states that the complainant was incorporated under the laws of New York in 1S71, and has ever since that time used its corporate name in carrying on its business of the manufacture and sale of var- ious compounds of pyroxyline, adapted to different uses and purposes, and that its name has become of great consequence in the good will of its business, its standing, and the reputation of its goods; that, in order to designate its said manufactured product and to distinguish it from similar compounds manufac- tured by others, the complainant, from the first, adopted and used the word "celluloid," which had never been used before, except to a limited extent by Isaiah S. and John W. Hyatt, by whom the word was coined, and who were engaged in the same manufacture at Albany, New York, and used the word as a trade-mark; and when complainant was incorporated the said Hyatts entered into its employ, and assigned to it all their rights relating to the business, good will, and trade-mark; and complainant has ever since used the word "celluloid" as its trade-mark, by impressing or stamping it into the surface of the articles made from the manufactured product, whereby it has acquired a high reputation as denoting complainant's manu- facture, and indicating goods of superior quality, as compared with like goods sold by other parties under the names of chro- lithion, lignoid, pasbosene, etc.; that in 1873 complainant caused said word "celluloid" to be registered as a trade-mark in the United States patent office, under the act in such case made and provided, and again registered in 1883, under the subsequent act. The bill then complains that the defendant, in order to deprive the complainant of its business and its rights, and to create an unfair competition, since the first day of Janu- ary, 1SS6, has adopted the name of Cellonite Manufacturing Company, with intent that it should be mistaken for complain- ** PROPEUTV, ::ellonite Jersey, 1887. case states that 5 of New York orporate name nd sale of var- erent uses and it consequence , the reputation manufactured Kinds manufac- t, adopted and n used before, 1 W. Hyatt, by engaged in the sed the word as icorporated the d to it all their adc-mark; and elluloid" as its le surface of the whereby it has ainant's manu- f, as compared lames of chro- 73 complainant s a trade-mark ;t in such case 883, under the le defendant, in and its rights, rst day of Janu- Manufacturing n for complain- CELLULOID MKG. CO. V. CELLONITE MFG. CO. 297 art's name, and intends to use it in the transaction of busuiess similar to that of the complainant; that the similarity of names will embarrass and obstruct the business of the complamants, cause confusion and mistake, divert complainant's custom, re- duce its sales, and deceive the public; that the defendant has commenced to erect works on an extensive scale for the manu- facture of a compound of pyroxyline, to be put on sale under the name of "cellonitc," a name purely arbitrary, and adopted to enable the defendant to sell the article as complamanfs produce ; that the corporators who formed the defendant com- pany had previously been engaged in the manufacture of pyroxyline compounds under the names of "pasbosene," "lig- noid," "chrolithion," etc., but selected the new name, "cel- lonite," in order to trade upon the complainant's reputation, and to sell its product as the complainant's and intends to stamp its goods with the word "cellonite," in imitation of the stamp on complainant's goods, ip order to sell them as complamant s manufacture. The bill prays an injunction to prevent the defendant from using the word "cellonite," or any imitation of the word "celluloid." The allegations of the bill are verihed by affidavits and exhibits. The defendant has filed an answer, in which it denies that the complainant has any right to the exclusive use of the word "celluloid;" alleges that many companies use it in their names, as "Celluloid Brush Company," "Celluloid Collar & Cuff Company," etc., which have been allowed by complamant without objection. It admits the selection and use of the word by the complainant, but denies any exclusive right to the use of it", because it has become a part of the English language to designate the substance celluloid, and the impression of the word on the articles manufactured by complainant merely indi- cates the substance of which they are composed. It denies that the word "cellonite" was adopted for the purpose of imitating the name of complainant, or the name stamped on the com- plainant's goods. It avers that the word was adopted as far back as 1883, and has been continuously used ever since, not to imitate the word "celluloid," but selected as better describing the exact nature of the pyroxyline compound used by the de- fendant; the same being a compound of the well known sub- stances cellulose and nitre, "cellonite" being merely a com- 29S MODES OF OBTAINING TITLE TO PERSONAL PROPERTY. pound derivative of those two words; that the defendant aban- Soned the use of the words "pasbosene," "l.gno.d etc., because those words gave no information as to the chem.ca constituents of the compounds designated by them. It alleges that it has for four years been engaged in manufactunng and selling goods marked "cellonite," and until now no attempt has b!en made to interfere with it. To show that the word -celluloid" is a word of common use, the answer cites various patents and books (but all subsequent to 1873). ^]'° '^'/"''' of the patent office as to the classes of inventions, in which one of the sub-classes is "celluloid." . r t w The only verification of the answer is the oath of J. K. France, an officer of the company, who swears that the con- tents are true, so far as they are within his knowledge; and, so far as stated on information and belief, he believes them to be ^' The answer virtually admits that the corporators of tht defendant had been engaged, before the formation of the de- fendant company, in the same manufacture, and had called their produce, "pasbosene," "lignoid," etc.; and that they adopted the word "cellonite," instead of those des.gnated or the reason, as the answer says, that it is more expressive of the constituents, cellulose and nitre. This is a somewhat singu ar explanation. The termination "ite," in chemistry, has a teen, nical application nothing to do with the word "n.tre, and not- withstanding the denial of the answer (which, however, can not be regarded as verified by oath), the inference strongly presses itself that the name was adopted on account of its sim- ilaritv to "celluloid," as the complainant charges. In alleging that the word "cellonite" has been used by the defendant since 1883, the defendant, which was not mcorpo- rated until May, 18S6, identifies itself with the previous associ- ation, shown by the affidavits to have been called the "Mer- chants' Manufacturing Company," composed of the sarne corporators, who abandoned the old name, and assumed the new one, for some purpose or other. The explanation given for so doing is not entirely satisfactory. Here are two facts Inding side by side : Firs^, the fact that the Celluloid Man- ufacturfng Company, an old, well established concern,-is doing a large and prosperous business, with a good will result- J ROPERTY. fendant aban- ignoid," etc., the chemical n. It alleges facturing and \ no attempt :hat the word cites various also the rules , in which one 5ath of J. R. that the con- ledge; and, so es them to be jrators of the ion of the de- md had called and that they designated, for :pressive of the lewhat singular itry, has a tech. nitre," and not- i, however, can jrence strongly ount of its sim- es. een used by the vas not incorpo- previous associ- alled the "Mer- ;d ot the same md assumed the xplanation given ;re are two facts : Celluloid Man- led concern, — is good will result- CELl.ULOID MFG. CO. V. CEI.t.ONlTE MFG. CO. 299 in. from many years of successful effort, and calls the product 7its nlufaJture ''celluloid," which has become such a pop- u - desi<^nation that, as the defendant says, .t -« become tor or ted in the English language; seconMy, the fact that he Merchants' Manufacturing Company, which produces sub- st.ntia ly the same article, and calls it by different names tip b sene," "Ugnoid," etc. (with wl.t ^^^^^^^J^^ told), suddenly changes its name to that of Ce on.te Ma f-xcturing Company, and calls its produce "cellon.te. It w 11 ake Ireat deal of explanation to convince any man of ord- n uv business experience that this change ot name was no :;;opted for the purpose of imitating that of the old, successful TisThe object of the law relating to trademarks to prevent one mlr from unfairly stealing away another's busmess and Tod will Fair competition in business is legitimate, and ^p omoTes the public good; but an -fair appropnat.on o another's business, by using his name or track-ark or an imitation thereof calculated to deceive the P"bl.c, or many oTh r way, is justly punishable by damages, and w.U be enjom- ^d byTJourt of eq.^ty. The question before me .s whether the law has been violated in the present case. ^Zt As to the imitation of the complainant's name. The fact .ha; both are corporate names is of "« consequence m^s .i«n Thev are the business names by which the parties ZZ^n anlare be dealt with precisely as if they were the names r;dvl^ or partnerships. The defendant's name TaHf tfown choosing, and, if an unlawful imitation of the Tomp inant's, is subject to the same rules of law as if . wer the nnme of an unincorporated firm or company. It is not dLticTwUh the complainant's name. That wou d be too "ros an ^-asion of the complainant's right. Similarity, no Sen ity i the usual recourse when one party seeks to benefit h msS' by the good name of another. What similarity is ^ffilnt t'o effect'the object has to be 'determine m eac case bv its own circumstances. We may say, generally, that a sim •Hrity which would be likely to deceive or mislead an ordinary nsirting customer is obnoxious to the law. Judged by Zstand rd, it seems to me that, considering the nature and • umsta'ce of this case, the name ''Cellonite Manufacturmg 300 MODITS Ol. OiriA.MNG WVLE TO 1-EKSONAL TUOPEUTV. Company" is sufficiently similar to that of the "Celluloid Man- ufacturiuf, Company" to amount to an infrmgcment of the complainant's trade name. The distin<,nMsh.ng words m both nu.nes are rather unusual ones, but supposed to have the same sense. Their general similarity, added to the ident.ty of the other parts of the names, makes a whole wh.ch is caiculated to '"'lw«//y. As to the complainant's alleged right to the exclusive use of the word ..celluloid" as a trade-ma- and the defendant's alleged imitation thereof. On th.s branch o the case, the defendant strenuously contends that the word eel- luloid" is a word of common use as an appellative, to desig- nate the substance celluloid, and can not, therefore be a trade- mark; and, secondly, if it is a trademark, the defendant does not infringe it by the use of the word "ce'lon.te." As to the first point, it is undoubtedly true, as a general rule, that a word merely descriptive of ^l.e article to wluch it is applied can not be used as a trade-mark. Everybody has a rlXt to use the common appellatives of the language, and to apply them to the things denoted by them. A dealer in flour can not adopt the word "flour" as his trade-mark, and prevent others from applying it to their packages of flour 1 am satis- fied from the evidence adduced before me that the word 'cel- luloid" has become the most commonly used name of the substance which both parties manufacture, and, if the rule referred to were of universal application, the position of the defendant would be unassailable. But the special case before me is this: The complainant's assignors, the Hyatts, coined and adopted the word when it was unknown, ^nd made it their trade-mark, and the complainant is assignee of all the rights of the Hyatts. When the word was coined and adopted, it was clearly a good trademark. The question is whether the sub- sequent use of it by the public, as a common appel ative of the substance manufactured, can take away the complainant s right. It seems to me that it can not. As a common appellative, the public has a right to use the word for all purposes of designating the article or product, except one,-it can not use it as a trade-mark, or in the way that a trade-mark is used, by applying it to and stamping it upon the articles. The complainant alone can do this, and any IIOPEUTV CELLULOID MI G. CO. V. CKLLONITK MFG. CO. 3"> clUiloid Man- emcnt of the words in both lave the same Jeiitity of the calculated to right to the ma- ., and the branch of the lie word "cel- tive, to desig- re, be a trade- iefcudant does a general rule, to which it is erybody has a iguage, and to dealer in flour k, and prevent r, 1 am satis- the word "cel- i name of the d, if the rule position of the :ial case before Hyatts, coined id made it their all the rights of adopted, it was diether the sub- 1 appellative of e complainant's right to use the icle or product, {, or in the way and stamping it do this, and any other person doing it will infringe the complainant's right. Perhaps the defendant would have a right to advertise that it manufactures celluloid. But this use of the word is very differ- ent from using it as a trade-mark stamped upon its yoods. It is the latter use which the complainant claims to have an exclu- sive right in; and, if it has such right (which it seems to me it has), then such a use by the defendant of the word "cel- luloid" itself, or of any colorable imitation of it, would be an invasion of the complainant's right. As a trade-mark it indi- cates that the article bearing it is the product of the complain- ant's manufacture. If another party uses it in that way, it indicates a falsehood, and is a fraud on the public, and an injury to the complainant. The essence of the law of trade- marks is that one man has no right to palm off, as the goods or manufacture of another, those that are not his. This is done by using that other's trade-mark, or adopting any other means or device to create the impression that goods exhibited for sale are the product of that other person's manufacture when tiiey are not so. The subject is well illustrated by the case of McAndrevv v. liassett, 4 De Gex, J. & S. 380. The plaintiffs produced a new article of liquorice, and stamped the sticks with the word "Anatolia," some of the juice from which they were made being brought from Anatolia, in Turkey. The article becon-ing very popular, the defendants stamped their liquorice sticks with the same word. Being sued for violation of plaintiff's trade- mark, one of their defenses was that no person has a right to adopt as a trade-mark a common word, like the name of a country where the article is produced. Lord Chancellor West- burv said: "That argument is merely the repetition of the fallacy which I have frequently had occasion to expose. Property in the word, for all purposes, can not exist; but property in that word, as applied by way of stamp upon a par- ticular vendible, as a stick of liquorice, does exist the moment the article goes into the market so stamped, and there obtains acceptance and reputation, whereby the stamp gets currency as an indication of superior quality, or of some other circumstance which renders the article so stamped acceptable to the public." Page 386. 3„: MOOKS OK ODTAIMNO TITLE TO PERSONAL IMU.rEUrY. Anolhcr ca.c throwinR HRht on the sul-ject is that of Singer Machine Ma.u.fR Co. v. Wilson, 3 AlM^- Cas. ^T^- H^^-'e the .U-fcn.hnU, a nianufacturcr and vendor of sewnR-maclnne., inserted in his price-list, amons,' other articles for sale, the -Sin.^er Sewing-Machine,- and sold machines by that name but having his own trademark upon them. The phunt.ft sued him on the ,.ound that by a Sin.er sewin^-machme ^^ ;- ""der- stood in the community a sewing-machme made by Smgcr the inventor, or by the plaintiff, his assignee and successor m busi- ness The plaintiff ccntended, therefore, that the advertise- ..ent was a fraud on the public, and an invasion of its exc usiv-e ri.rht t.. the name "Singer." The defendant conten.led tha tli; terms "Singer Sewing-Machine" m, nt a r>^^'^f^^ .machine (which he described), irrespective o who ma lufac- tured it; hat the word "Singer" had come to be descriptive in Us character, and would not have the effect attributed to it by the plaintiff. The judges who delivered opinions in the case held that if the use of the name "Singer" gave the public to uu.lerstand that the defendant sold machines made by the plain- tiff, it was a wrong done to the plaintiff, but that 1 the name had come into common use as a name of a prtrt.cular kind of machine, irrespective of the maker, the defendant had a right to use it in his advertisements in that sense using his ovu trade-mark on the article itself, and it was held by aU the .dges that it was a matter to be determined by evu^nce Ihether the use of the name in the advertisement had the one effect or the other. . . , This, it will be obP rved, was a case of advertising, and not of imitating a trade-mark. Still, if it had the same effect, it wa 1 e d to be equally culpable. The ccse does not decide Tt. f the word "Singer" had been the plaintiff's trade-mark, .change in its use would )uwe affected such trade-mark, Z cJo^s decide that an exten.icu of its use might render the word harmless in an advertisement The defendant's counsel in he present case placed great reliance on the decision in Cioth Co. v. Cloth Co., 11 H. L. c!is .2V After carefully reading that case, I do not see that h necessarily governs the present. No question was made as to he -"-!f the companies. The trade-m ark there was a large circular label stamped upon the cloth, contaming, w.thm UOI'KUrY. that of Sinj^cr 376. There inR-machines, for sale, the by that name, I phuntiff sued iiic was under- by Singer, the :ccssor in busi- the advcrtisc- of its excUjsive contended that irticular kind of who mamifac- e descriptive in ributed to it by ons in the case, •e the public to de by the plain- hat if the name jticular kind of lant had a right , using his own held by all the cd by evidence lent had the one ertising, and not e same effect, it does not decide tiff's trade-mark, iuch trade-mark, might render the ase placed great th Co., II H. L. I do not see that ;ion was made as mark there was a containing, within CEI.LULOIO MFG. CO. V. CEM.ONITE MFG. CO. 303 \tn circumference, the name of the former company which carried on the manufacture, and the places where it had been carried on, thus: "Crockett International Leather Cloth Company, Newark, N. J., U. S. A.; West Ham, Kssex, Eng- land." Within the circle were, first, the figure of an eagle, displayed, under the word 'Kxcclsior," and then certain announcements in large type, as follows: "Crockett iV: Co. Taimed Leather Cloth ; patented Jan'y 24, '5^- ^- 1^- '^ C. 1'. Crockett, Manufacturers." The court held this label to be partly trade-mark and partly advertisement; and, as the cloth was not patented, and J. R. & C. 1'. Crockett were not the manufacturers, the court was inclined to agree with the lord chancellor that these statements invalidated the label as a trade- mark ; but Lords Cranworth and Kingsdown preferred to place their decision against the plaintiff on the ground that the defendants' label did not infringe it. They pointed out differ- ences in figure, and showed that the announcements were different; and the defendants' announcement being "Leather cloth, manufactured by their manager, late with J. R. & C. P. Crockett & Co.," without any reference to a patent. Lord Kingsdown said: "The leather cloth, of which the manu- facture was first invented or introduced into the country by the Croc'ictts, was not the subject of any patent. The defendants had the right to manufacture the same article, and to represent it as the same with the article manufactured by the Crocketts ; and, if the article had acquired in the market the name of Crocketts' leather cloth, not as expressing the maker of the particular specimen, but as describing the nature of the article by whomsoever made, they had a right in that sense to manu- facture Crocketts' leather cloth, and to sell it by that name. On the other hand, they had no right, directly or indirectly, to represent that the article which they sold was manufactured by the Crocketts or by any person to whom the Crocketts had assigned their business or their rights. They had no right to do this, either by positive statement, or by adopting the trade- mark of Crockett & Co., or of the plaintiffs to whom the Crocketts had assigned it, or by using a trade-mark so nearly resembling that of the plaintiff as to be calculated to mislead incautious purchasers." 304 MOnES OK OHTAINIXG TITLE TO PERSONAL PROPERTV. It seen, to me that the true doctrine could "o* be more hap^ pilv expressed than is here done by Lord Kmgsdown There I nothing in the case, nor in the opin.ons of any of the judges, adverse to the claim of the complamant. There IS a case in the New York Reports (Selchow v Baker, oJn V 59)which comes very near to that now under con- 93 .N. 1. bJf J ,.^,j^^^^ animals," and other Jnrt to .Icsisnatc cctnin p>,..l«s manufactured and .old by ten n wh h picture, of animals, etc., on card board, >vere S up .> p'ces, and tbo P-- ^ '" S^l^V 'aC:.:.'" bv ,1 u Th/dcferdauts infringed, and the qucBt.on was iLt: ;Hs V.nd of designation conid avail as a ...le-n, °"" Tit tm 'those manufactured and sold by others, and s.™dngtbb^« become so generally known that it h,.bee,; wTf bvthe public as the ordinary appellat.on of the art.cle. -'?:::■ r is^o direc.,y -J- ;-:;;:riroT;:::, ir:c;.nL;tLr;:te.iu;^ "i;,t o„^; ;:sf'-:lt;ng to be considered, therefore n :r:ln,;dupo„..m»nn.--J-^^^^^^^^^^^^^ i-rar„:r;;od:;rof':besan,e.na„nfLturersaswhe r iOSAl. PROPERTV. )uld not be more hap- 1 Kingsdown. There 1 of any of the judges, rts (Selchow v. Baker, that now under con- 1 animals," and other he plaintiff as a trade- ufactured and sold by , on card board, were IS to put the pieces to- el "Sliced Animals," xes of these goods sold and the question was avail as a trade-mark, on of the court, after concludes as follows: acturer has invented a ord or a word or words :or the first time to his ifactured by him, to dis- ,nd sold by others, and [• descriptive of the arti- iteristics, but is arbitrary lenote grade or quality, ; of that name, notwith- y known that it has been Dpellationof the article." lat it seems unnecessary clear, as matter of law, exclusive use of the word considered, therefore, is the word "cellonite," as goods as a trade-mark, of the complainant. Is ; the word "celluloid," ired articles, to deceive lem to suppose that they me manufacturers as when i CELLULOID MFG. CO. V. CELLONITE MFG. CO. 305 n they purchased articles marked "celluloid ?" I think this ques- tion must be answered in the affirmative. I think that, under the circumstances of the case, the word "cellonitc" is sufficient- ly like the word "celluloid" to produce the mischief which is withiii the province of the law. I say, under the circumstances of the case. By that I mean the previous nomenclature applied to the articles as manufactured by different persons. The complainant has always stamped its goods with the word "cel- luloid." Other manufacturers have called the product as manufactured by them by names quite unlike this, as "pasbo- sene," "lignoid," "chrolithion," etc.; so that a wide differ- ence in designation and marking has existed between the com- plainant's goods and those of all others. The adoption now of a word and mark so nearly like the complainant's as "cellon- ite" can not fail, it seems to me, to mislead ordinary purchasers, and to deceive the public. The defendant, however, sets up two grounds of defense against the application for an injunction outside of the merits of the case: First, that the complainant has acquiesced in the use of the word "celluloid" in the names of a great number of other companies, several of which are enumerated in the answer, such as the "Celluloid Brush Company," the "Cellu- loid Collar & Cuff Company," and the like; and, by such acquiescence, has lost any right to complain of such use by other companies. But it is obvious that such special names, indicating confinement to a particular branch of the trade, are wholly unlike the complainant's general name of "Celluloid Manufacturing Company." Besides this, it is altogether probable, as we gather from one of the affidavits, that these branch companies are mostly licensees of the complainant, and very properly use the word "celluloid" in their names. We think that this defense can not justly prevail. The other is of somewhat the same character— supposed laches rnd acquiescence on the part of the complainant, in allowing the defendants theipselves, for three or four years prior to the suit, to use the word "cellonite," stamped on their articles of manufacture, and in their business name. How the d«"fendant could have done this before its own existence is diffi- cult to understand. But, suppose it is meant tbnt it was done by the corporators and predecessors of the defendaixt, there is 20 306 MODES OF OBTAINING TITLE TO PERSONAL PBOl'EUTY. no proof that it ever came to the knowledge of the complnm- anf and the fact that the previous name used under the former corporate organization was that of the "Merchants' Manufac turing Company" is sufficient to afford the complaii^nt pr.ma facie grouni of excuse for not having learned of the alleged use of the word "cellonite," if it ever was used. I do not think that either of these defenses can avail the defendant My conclusion is that the complainant, as the case now stands, is, in strictness, entitled to an injunction to restram the delendant from using the name "Cellonite Manufacturing Company, or any other name substantially like that of the complainant; and from using the word "cellonite" as a trade-mark or otherwise, upon the goods which it may manufacture or sell, or any other word substantially similar to the word "celluloid," the trade- mark of the complainant. _ But my great reluctance to grant a preliminary injunction for suppressing the use of a business name, or of a trade-nark in any case in which the matter in issue is a subject for fair dis- cussion, and admits of some doubt in the consideration of its facts, induces me to withhold the order for the present on con- dition that the defendant will agree to be ready to submit the cause for final hearing at the next stated term of the court, which commences on the fourth Tuesday of September. It is possible that additional evidence, or a fuller verification of the allegations of the answer, may so modify the facts of the case presented for consideration as to lead to a change of views on the question of infringement, or of excuse therefor At all events, it will be more satisfactory not to render judgment m the case until the defendant has been fully heard and when it would have a right of immediate appeal. Should the defend- ant not be ready for a hearing at the time indicated, the present motion may be renewed without additional argument, or the complainant may take such other course as it shall be advised. At the September term no further evidence was offered, and an order for iniunction was granted without opposition. , . „ „. CONSULT-Glendon Iron Co. v. Uhler, 75 Pa- St. 467, '^ ^"^'^'^f^^' Newman v. Alvord, 5XN. Y. 189, -^m.Rep 588, Metcalfv Brand 86 Ky ^y, 9 Am. St. Rep. 252; Caswell v. Dav.s, 58 N. Y. 233, n Am. Rep.'^3;, Brill V. Singer Sewmg Mach. Co., 41 Ohio St. 127, 5^ Am Rep 74 R"-f-'^ cLmical Works v. Muth, 35 If;^^'^'^^^' ^^^ Siege?, 116 111. .37. S6 Am. Rep. 767; Simmons Medicine Co. v. Mans- field Drug Co., 93 Tenn. 84. :^ mM •BOl'EllTY, the complain- ider the former nts' Manufac- plair-ant prima of the alleged ised. I do not lefendant. My low stands, is, I the delendant Company," or nplainant; and k or otherwise, 11, or any other id," the trade- ■y injunction for I trade-mark, in ;ct for fair dis- isideration of its present, on con- r to submit the m of the court, eptember. It is erification of the acts of the case nge of views on herefor. At all der judgment in ird, and when it Duld the defend- :ated, the present irgument, or the shall be advised. Efered, and an order ^67, 15 Am. Rep. 599; Metcalf V. Brand, 86 N. Y. 233, 17 Am. hio St. 127, 52 Am. :d. Rep. 574; Ball", edicine Co. v. Mans- MODES OF OBTAIN-ING TITLE TO PEKSOXAL PUOPEHTY. 307 § 59. Same— Deception in use of. CALIFORNIA FIG SYRUP CO. v. PUTNAM. [66 Fed. Rep. 750; 69 Id. 740.] Circuit Court of the United States, District of Mass- achusetts, J8gs. Colt, Circuit Judge.— The plaintiff is the proprietor and manufacturer of a liquid laxative compound called <'Syrup of Figs." The defendants manufacture and sell a laxative medi- cine which they term "Fig Syrup." The defendant claims a trade-mark in the words, "Syrup of Figs," or "Fig Syrup," .and seeks to enjoin their use by the defendants. There is no evidence that the defendants have imitated the plaintiff's labels or packages except in this particular. If this preparation is in fact a syrup of figs, the words Jire clearly descriptive and not the proper subject of a trade-mark. Upon this point the con- tention of the plaintiff is that its preparation is not a syrup of figs, since it contains only a very small percentage of the juice of the fig; that the laxative ingredient in it is senna; that while the fig in the form of fruit may have laxative properties, arising from "the seeds and skin, the fig in the form of a syrup is no more laxative than any other fruit byrup ; that it follows from these facts that these words, as applied to this compound, are not descriptive, but purely fanciful, and, therefore, constitute a valid trade-mark. The evidence shows that the compound is not a syrup of figs. It might more properly be termed a "syrup of senna," if the words were intended to be descriptive of the article. But assuming this is not a syrup of figs, we are met with the inquiry whether these words as applied to this preparation are not deceptive. The label on every bottle reads as follows: "Syrup of Figs, The California Liquid Fruit Remedy, Gentle and Effective." On the sides of each bottle are blown the words "Syrup of Figs" and on the back the words "California Fig Syrup Co., San Francisco, Cal." On the face of every package is a picture of a branch of a fig tree with the hanging fruit surrounded with the words, "California Fig Syrup, San Francisco, Cal. ;" and beneath this the words: "Syrup of Figs presents in the most elegant form the laxative jL 3oS MODES OF OBTAINING TITLE TO PERSONAL PROPERTY. and nutritious juice of the figs of California." Thus vvc see that the leading representation on the labels, packages, and in the advertisements of this preparation is that it is a laxative fruit syrup made from the juice of the California fig. Mr. Winslow, a witness for the plaintiff, fairly expresses the public idea of this compound in reply to the following question: "What did you suppose 'Syrup of Figs' was composed of when you purchased your first bottle.? A. I supposed it was made from the natural fruit. It called for the fruit." The popularity of this medicine arises from the belief in the mind of the ordinary purchaser that he is buying a laxative compound, the essential ingredient of which is the California fig- whereas, in fact, he is buying a medicine, the active prop- erty of which is senna. The ethical principle on which the law of trade-marks is based, will not permit of any such deception. It may be true as a scientific fact known to physicians and pharmacists that the syrup of figs has little or no laxative prop- erty but this is not the belief of the general public. They purchase this preparation on the faith that it is a laxative com- pound made from the fruit of the fig, which is false. This is not an immaterial representation the effect of which is harm- less, but it is a representation which goes to the very essence of the plaintiff's right to a trade-mark in these words. The cases are numerous where the courts have refused to grant relief under these circumstances. In the leading case of Leather Cloth Co. V. American Leather Cloth Co., 4 De Gex, J. & S. 177 142, 144 (affirmed 11 H. L. Cas. 523), which was a suit whe're the statements on the face of the trade-mark were untrue, Lord Chancellor Westbury says: "Where the owner of a trade-mark applies for an injunction to restrain the defendant from injuring his property by making false representations to the public, it is essential that the plaintift should not, in his trade-mark or in the business connected with it, be himself guilty of any false or misleading representation ; for if the plain- tiff makes any material false statement in connection with the property he seeks to protect, he loses, and very justly, his right to claim the assistance of a court of equity. ♦ * * Where any symbol or label claimed as a trade-mark is so constructed or worded as to make or contain a distinct assertion which is false, 1 think no property can be claimed in it, or, in other ROPERTY. Thus vvc see :kages, and in t is a laxative rnia tig. Mr. sses the public (•iug question : composed of ipposed it was ruit." e belief in the /ing a laxative , the California lie active prop- n which the law such deception, physicians and 3 laxative prop- public. They a laxative corn- false. This is which is harm- ! very essence of irds. The cases to grant relief :ase of Leather )e Gex, J. & S. ^hich was a suit ark were untrue, the owner of a n the defendant jpresentations to lould not, in his 1 it, be himself I ; for if the plain- nection with the y justly, his right . ♦ * • Where is so constructed ssertion which is n it, or, in other CALIFORNIA FIG SYUUr CO V. PUTNAM. 309 words, the right to the exclusive use of it can not be mam- t'lined " That case was cited and approved by the supreme court in Medicine Co. v. Wood, loS U.S.318, 2 Sup. Ct. 436, when a trade-mark was claimed in "Atwood's Vegetable Phys- ical Jaundice Bitters." The labels attached to the bottles stated that the medicine was manufactured by Moses Atwood, of Geor.retown, Massachusetts, whereas, in fact, it was manu- factured by another person in New York. Mr. Justice Field, speaking for the court says, on page 223, loS U. S. : "To put forth a statement, therefore, in the form of a circular or label attached to an article, that it is manufactured in a particular place, by a person whose manufacture there had acquued a great'reputation, when in fact it is manufactured by a different person at a different place, is a fraud upon the public which no court of equity will countenance." In Clotworthy v. Schcpp, 42 Fed. 62, 63, the right to a trade-mark was claimed in the word "Puddine" in connection with the words "Rose" and "Vanilla." In his opinion Judge Lacombe says: "The com- plainant hin-..clf is engaged in deceiving the very public whom he claims to protect from the deception of others. He calls his preparation 'fruit' puddine. In nine different places on his pack- age this word 'fruit' is repeated as descriptive of the article, and a dish of fruit (pears, grapes, etc.), is most prominently depicted on one face of each packet. His packages plamly suggest that fruit of some kind enters in some shape into his compound. A chemical analysis produced by defendant, the substantial accuracy of which is not disputed, discloses the fact that his "puddine" is composed exclusively of corn starch, a small amount of saccharine matter, and a flavoring extract, with a little carmine added to give it color. It contains no fruit in any form. Under these circumstances complainant's rights are not sufficiently clear to warrant the granting of a pre- liminurv injunction." In Alden v. Gross, 35 Mo. App. 123, 12S, 130, a trade- mark was claimed in the words "Fruit Vinegar." In that case the court says: "The vinegar thus branded was not manufac- tured out of fruit in the plain, ordinary, usual sense of that term, but out of low wines distilled from cereals, and fruit enters into its composition only to a v«ry insignificant extent. * * • It would be a novel application of the rule governing 1 310 MODES OF OBTAINING TITLE TO PERSONAL PROPERTY. the subject of trade-marks if one who manufactures vinegar out of cereals couid appropriate for the article thus manufactured the word 'Fruit.' and thereby exclude another from usnif? the word as descriptive of an article which is in point of fact man- ufacturcd out of fruit. * * * But whether the -.vord 'frmt in this connection is purely ind.cative of the character or quality of the article or not, the plaintiff's exclusive claim to it must fail on the further gro.n.'. that the use of the word ni that con- nection is clearly deceptive." In Connell v. Reed, 12S Mass. 177 the plaintiff sought to establish the exclusive right to the words "East Indian" as applied to his remedy. In that case Chief Justice Gray says: "The conclusive answer to this suit is » » » that the plaintiffs have adopted and used these words to denote, and to indicate, to the public that the mcdi- ^i,,es "^ed in the East Indies, and that the formula for tiv • .■ ^-'ned there, neither of which is the fact. Under these i . u..o,ances to maintain this bill would be to lend the aid of the court to a scheme to defraud the public." In Siegert V Ai.i,>,tt. 61 ISM. J76, 2S4, the subject-matter of the trade- mark was ■ -.nRo...ra Bitters," which purported to h.ave been prepared by Dr. c:.legert at Angostura, now Port of Spain Trinidad. In fact Dr. Siegert was dead and had never lived at Port of Spain. In dismissing the bill the court says: "It is a general rule of law in cases of this kind that courts of equity will not interfere by injunction where there is any lack of truth in the plaintiff's case ; that is, where there is any misrepresenta- tion in his trade-mark or labels." In Seabury v. Grosvenor, 14 Blatchf. z62, 263, Fed. Cas. No. 12, 576, the word "Capcne was sought to be appropriated as a trade-mark In that case Mr Justice Blatchford said: "A registered trade-mark is daimed in the word 'capcine.' Courts of equity refuse to interfere in behalf of persons who claim property ni a trade- mark, acquired by advertising their wares under such representa- tions as those above cited, if they are false. It is shown that there is no such article as 'capcine' known in chemistry, or med- icine or otherwise. The authorities are clear that in a case of this description a plaintiff loses his right to claim the ass.sta.ice of a court of equity." In Krauss v. Jas. R. Peebles Sons Co., «n - Harrows, 4 Do ( .., J. & S. 150; Hurg V. Bedford, 4 l^e G., J. & S. 3^2, 369, ^^These trade-marks became a part of the partnership property under the agreement entered into by Iloxie and Pegram, and passed to l>cgram by the bill of sale executed by Hox>e to hnn Bv the agreement Iloxie in terms contributed the good w.ll of tl.; business which he was carrying on with the tools, .mple- ,nents, and fixtures. A continuation of his business was plamly contemplated; and in point of fact the trade-marks were tjsed bv the firm during the whole continuance of the partnership T'he bill of sale is not controlled in its terns by any facts proved. There were negotiations looking to a transfer to Iloxie \i his interest in the partnership, at the close of the ensu.ng fishing season ; but nothing was arrived at. Hox.e had violated the terms of the partnership agreement in several important particulars, which naturally led to Pegram's insisting on a dis- solution. Under these circumstances the bill of sale was signed with no agreement, either written or oral to take Iloxie back as a member of the firm. By it Hoxie sold to Pegram -the fol- lowing goods and chattels, namely: All my right, title, and interest in and to all and singular the partnership property belonging to the firm of A. N. Iloxie & Co. (consisting of A N Hoxie and Frank R. Pegram), meaning hereby to sell and convey to said Pegram all my interest in the entire assets of said firm wherever the same may be situated." These terms are broad, and although the trade-marks and good will of the firm are not expressly mentioned, both are included within is meaning. Sohier v. Johnson, m Mass. 243, 243; 2 LincU. p.„t [4 Ed.], S60, 861, 1046; Shipwright V. Clements, 19 W. R ^00. Pegram, therefore, became the owner ot the trade- marks and his firm of Chaney & Pegram are now entitled to their exclusive use. The decree of the court in this case is affirmed. Decree affirmed. The second of these cases is the bill inequity brought by Chaney & Pegram against Hoxie, and it proceeds on the ground that the exclusive right to use the trade-marks had become of great value; that by the agreement of partnership with Hoxie 3l6 MODES CV OBTAINING TITLE TO PERSONAL PHOfKUTV. and the bill of sale from Iloxie, Pegrain had become the owner of them, with the good will of the business; that lloxie has now opened a soap factory and is manufacturing the two kinds of soap, and is putting them up in wrappers bearing the trade- marks, and has issued circulars and cards, using and avad- ing himself of the trade-marks. The prayer is for an injunction to restrain Hoxie from making and selling two kinds of soap, from using the wrappers bearing the trade-marks, and from doing other acts tending to injure a.id impair the good will of the business. The decree, after allirming Chaney & Pegram's ownership of the trade-marks, was in substance that Hoxie ought not to interfere with, or compete whh, them in the business of making or selling mineral or pum- ice soap in Boston, and ought to be enjoined from using the trade-marks, or any imitations thereof, and also from competing with and from endeavoring to disturb or interrupt the business of said Chaney & Pegram in the manufacture and sale of said soaps; and that injunctions should issue accordingly. So far as the ownership and use of the trade-marks arc con- cerned the decree should be atfirmed. But in reference to what is involved in the transfer of the good will of the business it requires oome modification. Neither the agreement of part- nership between Iloxie and Pegram, nor the bill of sale from Hoxie to Pegram contained any agreement that Hoxie, upon the dissolution of the firm, should not carry on a similar busi- ness, further than is implied by the transfer of the good will, pure and simple. The general rule in this commonwealth as applicable to the sale of stock in trade in a particular store and of the good will of the vendor's trade and all the advantages connected with such place of business, is that such a sale does not impart an agreement by the vendor not to engage again in a similar business in some other places at a subsequent time. Bassett v. Percival, 5 Allen, 345, 347- The court say: "Whenever such is the intent of the parties it is carried into effect by an express stipulation which if not in undue restraint of trade may be valid and binding. But we know no case where any such agreement has been raised by mere implication arising from the sale of the good will of a person's trade in connection with a particular place of business where it has been carried on. There may be cases and circumstances where ^H r PnOPKUTV. come the owner t lloxic lias now the two kinds ■arinK the traile- sinpj and avail- for an injunction r two kinds of le trade-marks, and impair the after alhvm in<4 >marks, was in ith, or compete mineral orpum- from using the I from competing upt the business ;ure and sale of ccordingly. c-marks arc con- in reference to II of the business 2freement of part- bill of sale from that Hoxie, upon )n a similar busi- )f the good will, ommonwealth as rticular store and I the advantages t such a sale does ) engage again in subsequent time. The court say : it is carried into ii undue restraint ve know no case mere implication person's trade in less where it has cumstances where IIOXIK V. CII\NEY; CHANKY v. HOXIK. ,V7 it will be ditVicult to tell just how much is inchulcd m a sa o nierely of the go<.d will of a business. Such dil1icult.es might exist where the business is not local in its character, but ex- tends over a considerable region or line of travel, as, for example, in the case of a carrier, an express company, a can- vassing agency, or a newspaper. »ut it is not necessary at •his time to enter upon the consideration of such cases. In the .resent time there is n-.thing in the averments or proof to show 'that the business of Chaney and Pegram was carried on by means of traveling agencies or that Hoxie has directly or per- suually solicited customers of Chaney and I'egram to leave them and to buy of him; and the case falls with- :he doctrine of Bassett v. Percival, above cited. It is proper to refer to the distinction which exists between 11 issett v. Percival and several later cases. In Angicr v. Webber, 14 Allen, 211, arising about four years later, in which the opinion of the court was delivered by Chief Justice Bigelow, who also delivered the opinion in Bassett v. Percival, the sale WIS of the pood will of a teaming business in Boston and between Boston and Somerville, with a special agreement not in any manner to do anything which should in any wise impa:r or injure the good will. This was a business which was done on the road and all along the line between two cities. In Dwight V. Hamilton, 113 Mass. 175, the defendant's "practice and good wid as a physician" was sold, with the land and buildings where he lived, and from the nature of the good will and practice of a physician, the case was said to b- clearly dis- tinguishable from Bassett v. Percival, and to resemble Ang.er V Webber. In Munsey v. Butterfield, 133 Mass. 493, the plaintiff agreed to sell certain articles of personal property used in the milk business, "also the good-will of said Munsey's milk route, lying in West Somerville, East Somerville, ^orth Somerville and Charlestown ;" and before completing the trans- action the plaintiff bargained with another person to buy a milk route which ran over a portion of the same territory m Charlestown and Somerville as the route which he had sold to the defendant; and the defendant having refused to complete the purchase, this was held to fall within the same rule as Angier v. Webber and Dwight v. Hamilton. All of these latter cases rest upon the peculiar character oi the good will 3 I S MODES OF OBTAINING TITLE TO PERSONAL PIIOPERTY. which was the subject of sale, and neither of them in the matter decided disturbs the decision in Bassett v. Percival which also is in accord with most of the recent decisions else- where, so far as they have come under our obseryat-.uir^ See Pearson v. Pearson, 2^ Ch. D. 145, where the late English decisions arc reviewed. Cottrell v. Babcock Printing Press Co., 54 Conn. 122 ; 2 Lindl. Part. S59 ct scq. In the circular headed "Special Notice to the Wholesale and Retail Trade," Hoxie virtually represented himself as the sue- cessor to the business the good will of which he had sold, and also asserted a right to the trademark. This was in excess of what he could lawfully do. Churton v. Douglas, Johns. ^Tnsomtch as there is nothing in the averments or proof which shows p.ay undue or unlawful interference or competition on the part of Hoxie except in respect to the use of the trade-mark on wrappers and in circulars and otherwise, and the virtual repre- sentation of himself as the successor to the business of the old firm the decree in the second case should be modified, by inserting a specification that he is not to interfere or compete with the business of Chaney and Pegram "by representing himself either directly or by implication as the successor of the late firm, or as doing the same business that was done bj them;" and the decree is aftirmed in respect to the use of the trade-marks and in other respects. Decree accordingly Consult-As to assignability of trade-mark, Welthaus v. Braun, 4 '"as^S'sTic^";- gt'ci ttu. Morgan v. Rogers. 19 Fed. Rep. 566, Mer, V. Ho pes, III n' Y. 4x5; Hazard v.Cas..ll 9.. N. ^-59, 45 Am Rep I78; Mye^s V. Kalamazoo Buggy Co., 54 Mich. 21, 52 Am. Rep. 8n. RSONAL PIIOPERTY. MODES OF OBTAINING TITLE TO PERSONAL PROPERTY. 3 I9 either of them in the in Bassett v. Percival le recent decisions else- our observat'.un. See Adhere the late English Jabcock Printing Press I et seq. :e to the Wholesale and nted himself as the suc- which he had sold, and . This was in excess of ,n V. Douglas, Johns. verments or proof which ce or competition on the use of the trade-mark on e, and the virtual repre- ( the business of the old should be modified, by to interfere or compete egram "by representing n as the successor of the iness that was done by I respect to the use of the Decree accordingly. Tiark, Welthaus v. Braun, 44 ;rs, 19 Fed. Rep. 566; Merry ill, 93 N. Y. 259, 45 Am. Rep. [ich. 21, 52 Am. Rep. 8n. II. BY ACT OF THE LAW. § 61. Title acquired by judgment. SMITH V. SMITH. [51 N. H. S7I.] Supreme Judicial Court of New Hampshire, 1872. Ladd, J.— The agreed statement of facts upon which the former opinion in this case was rendered (50 N. H. 3 13), showed that after this plaintiff had paid the judgment recovered a-ainst him for the original taking of the post, etc., this defend- ant entered upon the plaintiffs premises and carried them away again The defendant now offers to prove that his takmg was ^./br. that judgment was paid, though after it was rendered; .nd we are called on to decide that the plaintiff can not recover the value of the ,-.-,erty which he thus paid for in paying tha judgment, because V. was taken from him by the defendant before instead of after the payment. The defendant's position, in a word, is this: he had changed his security for the conversion of the property from an unliqui- dated claim for damages for a tort into a judgment for its value. Without releasing or surrendering that judgment, he broke and entered the plaintiff's close and took away the property for which he held the judgment; and having thus secured the property, he enforced payment for its value by collecting the udgment. He now claims that he is not liable for its value in this action, because the property did not pass to the defendant until the judgment was paid, that is, after his taking. If there were no other way of meeting this position, it would doubtless furnish a strong argument in favor of the former doctrine, that it is the judgment and not the satisiaction which passes the property. Adams v. Broughton, 3 Stra. 1078 ; and see cases collected in Buckland v. Johnson, 15 C. B. i4d- Such is not the law, however, in this state. Hyde v. ^oble 13 N H.494. And probably not now in England. Brimsmeadv. Harrison, Law Reps. 6 C. P. 5S4; §. C, Law Rep. 7 C P. 547. And the aid of no sych doctrines need be invoked. 320 MODES or OBTAINING TITLE TO PERSONAL PROPERTY. In the former opinion it was said that a satisfaction of the That remark was not strictly called for as the case then stood ; di" tly rised and distinctly decided by tl>e '=°«'- J"; ;■ ,re so mucli in point that 1 qnote a portion of them, ""'"y^- "It ITbe borne in n,ind that the plaintiff, m an aCon o It must DO 1^ ^„„^ „ purchaser against trover, compels the detendant t consider the his will; and from what period does he <=l«'-"° defendant as a P"f-- "^^^ r^e 1 e'rioltsion as rmIvaU,eofthe.oj^.ya.tb.peri.,^^^^^^^^^^ ::e,uitabipri„^les-.a.eW..oi.c„m^^^^^ JnflfT 1X::« J: ^.tpert, . .He post, etc pa^^ CiriU°;rrl;:ir;e1:n:She is Clearly eLtled to recover their val« '" ^^ J-"'; may -t be cases We do not undertake to say tnai uici j .. ^. ;^ ^Zl this doctrine would not apply. AH we dec.de is, that U does apply in a case like the present. T • vv Murray ,\Vall.i ; United Society v. Underwood, CoNsuLT-Love]oyv.Murraj,3Vva , Atwater v. „ Bush. .65. .1 Am. ^^P- -4^ BeU v. Pe r , 43 I^^^^3^^ - ^^^^^^^^. ^^ Tupper, 45 Conn. 144, ^9 A-"- ^.^P.Y^-^'.j^, follow ng ways: By pay- act of the law may also be acqu.red .n the follow^^ ^^^ ^ ^ 3^ ment(see Hagerstown Bank v. Ad^- ^^^^^^^^^^^^ ^^ '^ ^^^^^^ ^^^^, ^^ Am. Dec. 499) ; "^.v «"-'-"7 ^f/^f ^'f, :,:uon oi revenue laws, fail- forfeiture by the g«-—,,:;^ 'Recession and by marriage, ure to pay taxes, etc., by escneai, uj PROPERTY. MODES OF OBTAINING TITLE TO PERSONAL PROPERTY. 32 1 :isfaction of the the property to the conversion, case then stood ; y meets the case S ; I Hilliard on iburn V. Sewell, se the point was court. The re- it of the cor.rt, hem. He says : ;, in an action of urchaser against to consider the lim for the vaUie of conversion as md claims from , with interest to ate right of the )e considered as i right being con- e, must, on legal nmencement." for if, upon pay- posts, etc., passed eupon took effect ion, he is clearly uit. may not be cases e decide is, that it locietyv. Underwood, la. 368; Atwater v. personal property by ing ways; By pay- ,., 45 Pa. St. 419, 84 le, I Wall. 223); by of revenue laws, fail- id by marriago. III. BY ACT OF THE PARTIES. (a) by GIFT. § 62 Gifts inter vivos. WING V. MERCHANT. [57 Me. 383.] Supreme Judicial Court of Maine, i86g. Assumpsit by the executor of Timothy Woodward, deceased, to recover $200 left with defendant, for investment, by deceased. Defendant claimed that the money was the property of his wife, the daughter of the deceased, under a gift to her by her father about three years before his decease. There was evidence that in 1862 Timothy Woodward left with his daughter, Mrs. Mer- chant, some notes payable to himself, amounting to about $200, for safe-keeping. She collected interest, and let her father have money, as he called for it, until about three years before he died, when, as she testified, "my father gave the money to me. He said he did not think thir. would be any help to my insane sister, Mary, if he should save it for her support, and I had done more for him than all the rest of his children, and stayed with him longer, and he gave it to me. There was no one present when the notes were given to me. He was at my house at the time, in the sitting-room. The notes were at the time in a box in a chest, and the chest in my sleeping-room. Do not know as father did anything at the time any more than to tell me that he gave them to me for my labor, and what I had done for him." After the notes were given to Mrs. Mer- chant, her sister, becoming insane, was supported at the insane hospital, and the money from the notes was paid by Mrs. Mer- chant for her support. Barrows, J.— The circumstances which oblige us in some cases to look with suspicion upon a defense which asserts that property claimed by an executor or administrator in his represent- 21 122 MODES OF OBTAINING TITLE TO PERSONAL PROPERTY. ative capacity, has passed by a gift from the deceased to one of his heirs, are' not found in the case at bar. The defendant, with the consent of his wife, to whom it is claimed the property was \ ;^^^<>^; " another part of the opinion (p. 297) /t •«,«""'=.'/' 1^" authorities agree that delivery is essential to the validity of Inc gift, and that, it i^ said, is a wise principle of our laws, because delivery strengthens the evidence of the gift, and is certainly a very powerful fact for the prevention of frauds and perjury." In the first of these extracts there is an inaccuracy of expression, which seems to have introduced some confusion, if not an apparent contradiction, when, after having stated that "the property must pass at the time and not be intended to pass nt the giver's death," it is added, that "until the event occurs which is to divest him, the title remains in the donor." But a view of the entire passage leaves no room to doubt its meaning; that a donatio mortis causa must be completely executed, pre- cisely as required in the case of gifts inter vivos, subject to be divested by the happening of any of the conditions subsequent; that is, upon actual revocation by the donor, or by the donor's surviving the apprehended peril, or outliving the donee,' or by the occurrence of a deficiency of assets necessary to pay the debts of the deceased donor. These conditions are the only qualifications that distinguish gifts mortis causa and tntcr vivos. 32S MODES OF OBTAINING 'ITII.E TO PEKSONAI, PUOl'KHTY. On the other hand, if the gift does not take effect as an exe- cuted and complete transfer to the donee of possession and title, either le^al or eciuitable, during the life of the do-ior, .t ,s a testamentary disposition, good only if made and proved as "^ This statement of the law, we think, to be correctly deduced from the judgments of the highest courts in England and m tins country; although, as might well have been expected s.nce the early introduction of the doctrine into the common law from the Roman civil law, it has developed, by new and successive applications, not without fluctuating and inconsistent decisions. "As to the character of the thing given," says Chief Justice Shaw, in Chase v. Redding, 13 tiray, 41S-420, "the law has undergone some changes. Originally it was limited, with some exactness, to chattels, to some object of value de iverab e by the hand; then extended to securities transferable solely by delivery, as bank notes, lottery tickets, notes payable to bearer or to order, and indorsed in blank; subsequently it has been extended to bonds and other choses in action, in writing or represented by a certificate, when the entire equitable interest is assigned; and in the very latest cases on the subject in this commonwealth, it has been held that a note not negotiable, or if negotiable, not actually indorsed, but delivered, passes, with a right to use the name of the administrator of the prom- 'isee, to collect it for the donee's own use." Citing Sessions v. Moseley, 4 Cush. 87; Bates v. Kempton, 7 Gray, 382; Pansh V. Stone, 14 Pick. 203. In the case last mentioned-Parish v. Stone-the same dis- tinguished judge, speaking of the cases which had extended the doctrine of gifts mortis causa to include choses m actions, delivered so as to operate only as a transfer by equitable assign- ment or a declaration of trust, says further, that "these cases all CO on the assumption that a bond, note, or other security is a valid subsisting obligation for the payment of a sum of money, and the gift -, in effect, a gift of the money by a gift and deliv- erv of the instrument that shows its existence and affords the the means of reducing it to possession." He had, in a previous part of the same opinion, stated that "the necessity of an actual delivery had been uniformly insisted upon in the application of the rules of the English law to this species of gift." Page 204. Mi , I'uoriciM V. [feet as an exc- [ possession and if the do-ior, it is le and proved as jorrectly deduced ifrhuid and in tliis upccted, since tlie iinnion law from V and successive isistent decisions. US Chief Justice 20, "the law has imited, with some le deliverable by ;ferable solely by payable to bearer L-ntly it has been on, in writing or equitable interest he subject in this lot negotiable, or, ercd, passes, with [itor of the prom- Citing Sessions v. GJray, 3S2 ; Parish ne — the same dis- 1 had extended the choses in actions, )y equitable assign- that "these cases • other security is a f a sum of money, by a gift and deliv- ce and affords the -. had, in a previous :cessity of an actual n the application o£ [gift." Page 204. nASKF.T V. IIASSKI.I.. 329 In Camp's Appeal, 36 Conn. 88, the Supreme Court of Errors of Connecticut held that a delivery to a donee ol a sav- ings bank book, containing entries of deposits to the credit of the donor, with the intention to give to the donee the deposits represented by the book, is a good delivery to constitute a com- plete gift of such deposits, on the general ground that a delivery of a chose in action that would be sutllcient to vest an eciu.ta- ble title in a purchaser is a suHicient delivery to constitute a valid gift of such chose in action without a transfer of the legal title That was the case of a gift inter vivos. But the court say, referring to the case of Brown v. Brown, iS Conn. 410, as having virtually determined the point: "It is true that was a donation causa vwrtis, but the principle involved is the same in both cases, as there is no difference in respect to the requi- sites of a delivery between the two classes of gifts." And so Justice Wilde, delivering the opinion of the court in Grover^v. Grover, 24 Pick. 261-264, expressly declared that "a gift 01 a chose in action, provided no claims of creditors intertere to affect its validity, ought to stand on the same footing as a sale ; that the title passed, and the gift became perfected by a deliv- ery and acceptance; that there was, therefore, "no good reason why property thus acquired should not be protected as fully and effectually as property acquired by purchase;" and showed by a reference to the cases, that there wa. > difference in this respect between gifts inter vivos and mortis causa. In respect to the opinion in this case, it is to be observed that it cites with approval the case of Wright v. Wright, i Cow .08, in which it was decided that the promissory note, of which the donor himself was maker, might be the subject of a valid gift mortis causa, though the concurrence was not upon that point. That case, however, has never been followed. It was expressly disapproved and disregarded by the Supreme Court of Errors of Connecticut in Raymond v. Sellick, 10 Conn 4^0, Judge Waite delivering the opinion of the court; had been expressly questioned and disapproved in Parish v. Stone 14 1 'ck. 19S-- 206 by Shaw, C. J., and was distinctly overruled by the court of appeals of New York in Harris v. Clark, 3 Comstock 93- In that case it was said: "Gifts, however, are valid without consideration or actual value paid in return. But there must be delivery of possession. The contract must have been exe- 330 MODES OF onrA.MNc; title to i-eusonal property. cutcl. The thrnK pivcn must be put into the hands of the aonce, or place.l within his power by delivery of the mea.^ of obtaining it. The sift of the maker's own note .s the dchvery of a promise ouly, and not of the thing promised, and the ^ 1 1 therefore fails. Without delivery the transaction ,s not valid as an executed gift; an.l without consideration it is not vahd as a contract to be executed. The decision in Wr.ght v. Wr.ght was founded on a supposed distinction between ag.ftj«/.r vivos and Uonaiio mortis causa. Hut there appears to be no such distinction. A delivery of possession .s md.spensable m cither case." , The case from which this extract is taken was very thor- oughly argued by Mr. John C. Spencer lor the plauU.ff and Mr Charles O'Connor for the defendant, and the judgment of the' court states and reviews the doctrine on the subject w.th nu.ch learning and ability. It was held that a wr.tten order upon a third person, for the payment of money, made by the donor, was not the subject of a valid gift, either inter rnvos or mortis causa-, and the rule applicable in -ch cases as con- ceded by Mr. O'Connor, was stated by hmi ''« """^J" -Delivery to the donee of such an instrument as w.ll enable him by fcuce of the instrument itself, to reduce the und n.to possession, will suffice, is the plaintiff's doctnne. Th.s m.ght safely be conceded. It might even be conceded that a dehve. y out of the donor's control of an instrument, without which he could not recover the fund from his debtor or agent, would '"ThI" same view, in substance, was taken in deciding Hewitt V Kave, L. R., 6 Eq. 198, Nvhich was the case of a check on a banker given by the drawer mortis causa, who died before it w IS possible to present it, and which was held not to be vahd Lord RomiUy, M. R., said: "When a man on his deathbed .ives to another an instrument, such as a bond, or promissory note or an I O U, he gives a chose in action, and the delivery of the instrument confers upon the donee all the rights to the chose in action arising out of the instrument. That s principle upon which Amis v. Witt, 33 Beav. 619, vst , where the donor gave the donee a document by . the bankers acknowledged that they held so much mone ^elong- in. to the donor at his disposal, and it was held that the deln , I'ROPERTY. he hands of the of the means of e is the delivery sed, and the ^\it ;tion IS not valid it 18 not valid as r^right V. Wrif,'ht /ecu a yift tntt-r ppears to be no indispensable in n was very thor- the plaintiff and the judgment of 1 the subject with t a written order ney, made by the ler inicr vivos or .ich cases, as con- him as follows: :nt as will enable ice the fund into fine. This might dedthat a delivery without which he r or agent, would n deciding Hewitt ase of a check on a vho died before it ;ld not to be valid, n on his deathbed ond, or promissory 1, and the delivery all the rights to the lent. That "s tl' '. 619, w; ■, nent by ■ the Lich mone elong- tield that the deliv- nASKKT V. IIASSKM.. 33« e,v of that document conferred upon the donee the r.-ht to ,,;eive the money. Hut a check is notlung more than an order „. obtain a certain sum of tuoney, and it makes no d.tlcrence .vluther the money is at a banker's or anywhere else. It .s an order to deliver the money, an.l if the or.kr is not acte. upon i„ the lifetime of the person who gives it, it is worth nc.ih.ng. Vccordinglv the Vice-chancellor, /« re Heck s Estate, L. K., ', , He,. 4S.;, refused to sustai.i as a valid gift a check upon a banker, even although its delivery was accompanied by that of tlie donor's pass-book. , , , The same rule, as to an unpaid and unaccepted check, was followed in Second National Bank of Detroit v. Williams, ,3 Mich 282. The principle is that a check upon a bank account is not of itself an equitable assignment of the fun.l. Hank of the Republic v. Millard, 10 Wall. .5^. Hut .f the banker ,ccents the check, or otherwise subjects himself to babd.ty as a Irustee, prior to the death of the donor, the gift is complete and vdid. Hromley v. Hrunton, L. R., 6 Eq. 275. ' Contrary decisions have been made in respect to donat.ons ,„orils causa of savings bank books, some courts holdmg that the book itself is a document of title, the dehvery of wh.ch, with that hUent, is an equitable assignment of the tund. 1 .erce V Hoston Savings Hank, .29 Mass. 4^5 ; HiU v. Stevenson, 63 Mune X6±: Tillinghast v. WReaton, S R. E 536. The con- tniry w- ^-Id in A^hbrook v. Ryan, 2 Hush, 228, and in Mc Gonnell v. Murray, Ir. Rep., 3 Eq. 460- That a delivery of a certificate of deposit, such as tha described in the record in this case, might constitute a val.d donatio .ortis causa, does not admit of doubt. It was so decided in Amis v. Witt, 33 Beav. 619; n. Moore vMoore L R iS Eq. 474; Hewitt V. Kaye, L. R., 6 Eq. 198; Wes- tedy V. DeWitt, 36 N. Y. 340. A certificate of deposit is a subsisting chose in action and represents the funds it describes, ■IS in cases of notes, bonds, and other securities, so that a 'lelivory of it, as a gift, constitutes an equitable assignment of I he money for which It calls. . , , • The point, which is made clear by this review of the deci- ons on the subject, as to the nature and effect ot a dehvery of 1 chose in action, is, as we think, that the instrument or docu- ment must be the evidence of a subsisting obligation and be V ^32 MODES OF OBTAINING TITLE TO PEIISONAL PROPERTY. delivered to the donee, so as to vest him with an equitable title to the fund it represents, and to divest the donor of all present control and dominion over it, absolutely and irrevocably, in case of a gift inter vivos, but upon the recognized conditions subsequent, in case of a gift monis causa; and that a delivery which does not confer upon the donee the present right tc reduce the fund in possession by enforcing the obligation, according to its terms, will not suffice. A delivery, in terms, which confers upon the donee power to control the fund onlj after the death of the donor, when by the instrument itself it ii presently pavable, is testamentary in character, and not gooc a.i a gift. Further illustraaons and applications of the princi plJmay be found in the following cases: Powel v. Ilellicar 26 Beav. 261; Reddell v. Dorbee, 10 Sim. 244; Farquharsoi V. Cave. 2 Coll. 356; Hatch v. Atkinson, 56 Maine, 324 Beeran v. Markham, 7 Taunt. 224; Coleman v. Parker, 11, Mass. c^o; Wing v. Merchant, 57 Maine, 383; McWillie v Van Vacker, 35 Miss. 42S; Egerton v. Egerton, 17 N. J. Ec 420- Michener v. Dale, 23 Pa. St. 59. The application of these principles to the circumstances c the present case requires the conclusion that the appellar acquired no title to the fund in controvc sy, by tu2 indorsemer and delivery of the certificate of deposit. The certificate wi payable on demand ; and it is unquestionable that a delivery ( it to the donee, with an indorsement in blank, or a specii indorsement to the donee, or without indorsement, would ha\ transferred the whole title and interest of the donor in the fur represented by it, and might have been valid as a donatio mo tis causa. That transaction would have enabled the donee reduce the fund into actual possession, by enforcing nn.>n'- according to the terms of the certificate. The donee mig have forborne to do so, but "-"t would not have affected h right. It can not be said li. it obtaining payment in the lif time of the donor would have been an unauthorized use of tl instrument, inconsistent with the nature of the gift; for the g is of the money, and of the certificate of deposit, merely as means of obtaining it. And if the donee had drawn the mone upon surrender of the certificate, and the gift had been subs quenlly revoked, either by the act of the donor or by operati of law, the donee would be only under the same obligation BASKET V. HASSELL. 335 >EKSONAL PROPERTY. n with an equituble title the donor of all present tely and irrevocably, in he recognized conditions usa \ and that a delivery lec the present right to niforcing the obligation, ;. A delivery, in terms, r to control the fnnd only the instrument itself it is character, and not good pplications of the princi- ses: Powel v. Hellicar, 1 Sim. 244; Farquharson kinson, 56 Maine, 324; Coleman v. Parker, 114 Maine, 3S3; McWillie v. V. Egerton, 17 N. J. Eq. 9- s to the circumstances of lusion that the appellant )vc sy, by tu2 indorsement osit. The certificate was tionable that a delivery of nt in blank, or a special indorsement, would have st of the donor in the fund en valid as a donatio mor- have enabled the donee to ion, by enforcing nn.)n'-it ificate. The donee might ould not have affected his aining payment in the life- in unauthorized use of the ure of the gift ; for the gift ite of deposit, merely as a once had drawn the money, d the gift had been subse- ; the donor or by operation der the same obligation to return the money, that would have existed to return the cert.h- cute, if he had continued to hold it, uncollected. But the actual transaction was entirely different. The m- dorsement, which accompanied the delivery, qualified .t, and li.nited and restrained the authority of the donee in the collec- tion of the money, so as to forbid its payment until the donor s death. The propertv in the fund did not presently pass, but remained in the donor, and the donee was excluded from its possession and control during the life of the donor. That qual- itication ol the right, which would have belonged to him it he hid become the present owner of the fund, establishes that there wa no delivery of possession, according to the terms of the instrument, and that as the gift was to take effect only upon the death of the donor, it was not a present executed gift mortis causa, but a testamentary disposition, void for want of comp 1- ance with the statute of wills. The right conferred upon the donee was that expressed in the indorsement; and that, instead of bein- a transfer of the donor's title and interest in the fund, as established by the terms of the certificate of deposit, was merely an order upon the bank to pay to the donee the money c-illed for by the certificate, upon the death of the donor. It was, in substance, not an assignment of the fund on deposit, but a check upon the bank against a deposit, which, as is shown by all the authorities and upon the nature of the case, can not be vMid as a 'donatio mortis causa, even where it is payable t?i f>rcscuti, unless paid or accepted while the donor is alive ; how much less so, when, as in the present case, it is made payable only upon his death. The case is not distinguishable from Mitchell v. Smith, ^ DeG J & S. 422, where the indorsement upon promissory notes',' claimed as a gift, was, "I bequeath-pay the within con- tents, to Simon Smi:h, or his order, at my death." Lord Jus- tice Turner said: "In order to rende. the indorsement anl delivery of a promissory note effectual, thf y must be such as to enable the indorsee himself to indorse a:.d negotiate the note. That, the respondent, i^ilnion Smith, could not have done here during the testator's life." It was accordingly held that the disposition of the notes was testamentary and invalid. It can not be said that the condition in the indorsement, which forbade payment until the donor's death, was merely the condi- 334 MODES OF OBTAINING TITLE TO PERSONAL PROPERTY. Hon attached by the law to every such gift. Because the condi- tion, xvhich inheres in the gift mortis causa, is a subsequent condition, that the subject of the gift shall be returned if the y . ^ The mill was not arranged to keep the several lots of gram in separate parcels. It was so constructed that all the gram delivered into it was hoisted to the second floor, emptied into a sink on the first floor, and from thence carried by elevators mto a bin on the third floor, where at times there was a large accu- mulated mass of wheat. Newman also purchased wheat in considerable quantities from time to time which was delivered into the mill and disposed of as the other wheat. This promis- cuous commingling of the grain into a common mass was in accordance with the known usage of the mill, which was sup- plied for grinding from the mass of the wheat, without any dis- crimination as to the several lots or parcels in which it was received The miller was, of course, under no obligation to restore to the plaintiffs the specific or id. ntical wheat which he received nor the product of it in flour; indeed, this, owing to the manner in which the business was conducted, was practically impossible. , j „i^ The fundamental distinction between a badment and a sale is that in the former the subject of the contract, although in an altered form, is to be restored to the owner; whilst in the hit- 33^ MODES OF OBTAINING TITLE TO PERSONAL PROPERTY. ter there is no obligation to return the specific article; the party receiving it is at liberty to return some other thing of equal value in place of it. In the one case the title is not changed, in the other it is, the parties standing in the relation of debtor and creditor. Thus in Norton v. Woodruff, 3 N. Y. 153, a miller acrreed to take certain wheat and to give one barrel of superfine flour for every 4 36-60 bushels thereof, the flour to be delivered at a fixed time, or as much sooner as he could make it. As the miller's contract was satisfied by a delivery of flour from any wheat, the transaction was held to be a sale. But in I^Iall- i-oy v Willis, 4 Id. 76, wheat was delivered under a contract -to be manufactured into flour," and one barrel of the flour was to be delivered for every 4 15-60 bushels of wheat; this transaction was by the same court held to be a bailment. If a party having charge of the property of others so con- founds it with his own that the line of distinction can not be traced, all the inconvenience of the confusion is thrown upon the party who produces it; where, however, the owners con- sent to have their wheat mixed in a common mass, each remains the owner of his share in the common stock. If the wheat is delivered in pursuance of a contract for bailment, the mere fact that it is mixed with a mass of like quality, with the knowledge of the depositor or bailor, does not convert that into a sale which was originally a bailment, and the bailee of the whole can of course, have no greater control of the mass than if the share of each were kept separate. If the commingled mass has been delivered on simple storage, each is entitled on demand to receive his share ; if for conversion into flour, to his proper pro- portion of the product. Chase v. Washburn, i Ohio St. 244, cq Am Dec. 623; Hutchison v. Commonwealth, b2 1 a. bt. 472 It makes no difference that the bailee had in like manner conUibuted to the .^nass of his own wheat; for although .the absolute owner of his own share, he still stands as a bailee to the others, and he can not abstract more than that share from the common stock without a breach of the bailment, which will subject him, not only to a civil suit, but also to a criminal pros- ecution. Hutchison v. Commonwealth, supra. But where, as in Chase v. Washburn, suj>ra, the under- standing of the parties was that the person receiving the grain might take from it or from the flour at his pleasure, and appro- UOPERTY. iclc; the party hing of equal lot changed, in I of debtor and . 153, a miller el of superfine to be delivered 1 make it. As J of flour from But in Mau- nder a contract rrel of the flour of wheat ; this ailment. [ others so con- tion can not be is thrown upon he owners con- ss, each remains If the wheat is it, the mere fact 1 the knowledge that into a sale lee of the whole lass than if the ingled mass has id on demand to ) his proper pro- I Ohio St. 344, ;alth, S3 Pa. St. d in like manner for although .the ds as a bailee to that share from ment, which will I a criminal pros- i. mpra, the under- ceiving the grain :»sure, and appro- nRETZ V. DIEHL. 337 priate the same to his own use, on the condition of his procur- Ing other wheat to supply its place, the dominion over the property passes to the depositary, and the transaction is a sale and not a bailment. To the same effect are Schindler v. \V est- over, 99 Ind. 395 5 Richardson v. Olmstead, 74 TH- 3 13? "'^''^y V. Beresley, 87 Id. 556; and Johnston v. Browne. 37 Iowa 200. In Lyne v. Lenon, 106 Ind. 567, the distinction is thus stated : -If the dealer has the right, at his pleasure, either to ship and sell the same on his own account and pay the market price on demand, or retain and redeliver the wheat, or other wheat in the place of it, the transaction is a sale. It is only when the bailor retains the right from the beginning to elect whether he will demand the redelivery of his property or other of like qua - itv and grade, that the contract will be considered one of bail- ment If he surrender to the other the right of election, it will be considered a sale, with an option on the part of the pur- chaser to pay either in money or property, as stipulated. The distinction is: Can the depositor, by his contract, compel a delivery of wheat, whether the dealer is willing or not? If he can, the transaction is a bailment. If the dealer has the option to pay for it in monev or other wheat, it is a sale. i his dis- tinction is drawn, of course, with reference to cases where grain is deposited in a mass, as in grain elevators, etc. There are cases in which the doctrine of bailment has been carried much beyond the rule recognized in the cases we have cited. See Sexton v. Graham, 53 Iowa, iSi, and Nelson v. Brown, S3 W- 555- ^e think, however, the rule recognized in Chase v. Washburn, supra, and Lyne v. Lenon, .«/m, is a safe one, and is more in accord with the well settled principles of the law relating to bailment. • But in the case at bar we are not called upon to say what would be the effect upon the transaction if Newman had author- ity in the regular course of dealing to ship or sell the wheat of hfs customers on his own account. Undoubtedly he had a r.gh to sell of the grain or flour to the extent of his own share ; that is to say, what he contributed to the common stock and the tolls to which he was entitled. But the jury has found that he had no authority whatever to sell or to abstract from the common stock beyond the amount to which he was himself entitled. In the general charge, and also in the answers to the points sub- 33 33S MODES OK OBTAINING TITLE TO PERSONAL PROPERTY. n^Uted, the learned court instructed the jurors in the clearest Tanc that if they should find from the evidence that New "an, bv the nature of his dealings with the several phunt.ffs, Td ac< uired such don.inion over their wheat as authon.ed h.m a his pleasure, not only to grind it into flour, bnt also to s the same for his own use, the transaction must ncccssardy be veated as a sale, and that, in that event, the plan.t.fs could not recover. This instruction was repeated with marked em- phasis several tir..s during the progress of the charge, and ,t Lms quite impossible that the jury could have labored under any misapprehension as to the nature of the incjuiry they were t^ m^ke The verdict of the jury was for the plamt.ffs; and ve must" assume the facts which it is plain the jury, in arr.vmg •U such a verdict, must have found, viz., that Newman had no 'authority to sell the grain delivered into his m, 1 under the annngement with the plaintiffs,-that is to say, the.r share of the common stock, nor the flour which was the product thereof^ It was the plain duty of Newman, however, to see to it tha at all times the mill contained wheat or flour sutticent m amount to answer all demands under the bailment; failing m tn.s, he was derelict in duty, and liable under the law for the appropri- ation and conversion unto his own use of property which d.d not belong to him. . Nor do we see that the court committed any error in the answers to the plaintiff's points. These points, according to the general practice, were based upon an assumption of facts, the Truth or falsity of which was for the jury, and a law was stated as upon a finding of these facts by the jury. They we.-e relevant to the issue; they disclosed clearly the specific facts assumed which were fairly and reasonably consistent with the nPuntiff's theory of the case upon the evidence, and the opinion of the court thereon could not have had any weight with the Jurors in their deliberations unless the facts assumed were m heir judgment established by the proofs. The points certainly vvere not such as could b. disregarded by the court and we can not see how the answers thereto could be supposed to have misled the jury. i • *i „ The learned court defined a bailment and a sale, marking the distinguishing features of each and as the nature of the trans^vc- tion depended not wholly upon the written receipt, but m part PROPERTY. in the clearest ence that Ncw- evcval phuntiffs, s authorized him •, but also to sell it necessarily be ; plaintiffs could vilh marked em- e charge, and it k-e labored under iquiry they were le plaintiffs; and : jurv 'n arriving Newman had no s mill under the ay, their share of J product thereof to see to it that ifficient in amount failing in this, he for the appropri- operty which did A any error in the iits, according to isumption of facts, ', and a law was jury. They were I the specific facts ;onsistcnt with the ce, and the opinion f weight with the ts assumed were in ?he points certainly e court and we can supposed to have a sale, marking the iture of the transac- reccipt, but in part LOOMIS V. nUAGG. 339 on verbal evidence as to the method of conducting the busuu-ss the c.uestion was undoubtedly one proper to be subm.tted to he jury. The court instructed '.ne jury that if certam ac s existed, the trans.uicn "-^ . sale; otherwise it was but a bad- n.ent; and the c.uestion was proper for the jury whether or no under the instruction of the court, according to the facts, as the iury might tind them, the transaction was a bailment or a sale On a carc-fid review of the whole case we find no error and the judgment is alVirmcd. CoNsm.T-Chase V.Washburn, i Ohio St. 244, 59 A>". "ec 623; Foste^ V. Pettibone, 7 N. V. 4331 Woodward v. Seemans 125 Ind_ 330, o, tm St Rep 25; Powder Co. v. Hurkhardt, 97 I'- ^- ^^^' ^'^^^'^ A land Mll'co 4.;Mo.(App.)3i; Cushing v. Breed, 14 Mien, rl \m ec 777 Kice v. Nixon, 97 1"^- 97, 106, 49 Am. Kep. 730; SSrd : mbbard: '48 Mich. 4.1. 4^ A- I^ep. 474; »oie v. Ohnstead, 36 111. J.50, 85 Am. Dec. 397- § 65. Sale or lease. LOOMIS V. BRAGG. [50 Conn. 228; 47 Am. Rep. 639.] Supreme Court of Errors of Connecticut, 1882. Park, C. J— This suit grows out of the following contract between the parties: u Agreement between C. M. Loomis, of New Haven, Conn., and James D. Bragg, of Bridgeport, Conn. Said Loomis agrees to rent and said Bragg agrees to hire, one Alber W. Ladd & Co. piano, No. 1S07, price $140 (cash $5, balance §1,0 for the term of twenty-seven months from the fifth day of January, iSSi, at the rent of $5 per month, payable on the fifth day of each month, in advance. And it is agreed that if the rent and interest shall be paid punctually according to a- o d sale. The sum to be paid is the entire present value of rl^o; that is $Mo. That sum, with the interest, .s to be : id n a ittle more than two years, when the instrument wou^d early as valuable as it was at the outset. It .s mcred b le ha teclefendant would be willing to .ay -/-'/'- ^"^.^ . . of the instrument in so short a time, or that the plamfff ^V. r.,nicious enough to demand it. Indeed, the fact r:U. plan ::::iy ti:eLntract to be the defendant's when h lornt should be paid shows decisively that the monthly urns were to be paid, not as rent, but as the purchase pr.ce Chermore, it was thought important by the pla.nt.ff tha . ™id be provided that if the defendant should at any t.me fad ,^y the'stipulated sums when due he should los. the p.ano ;„ that all that had been pa.d should belong to the plan,t,« There was no necessity for this if the contract was a lease ot ^'wTtS it clear that the parties stipulated for a conditional 1 «f the Diano leaving the sale to be consummated ni the ;: Le whenrrurchase pHce should be paid The plaintiff had hi ns^ument to sell, the defendant desired to purchase >t but wL un blTto pay th^ entire price on the delivery of the prop- In The plaintiff was unwilling to give credit so the arrange- n^ent under consideration was made by which the plamt.ff vv^ eTbled to accomplish his object by a conditional sale and be t and the defendant to have the use of the p.ano and pay oii in small sums at stated times according to h>s ab.bty. Such was the contract ; and now we are to consider the r.ghts of the parties under it. The defendant failed to perlurn. .t. He Ide default of payment after having paid a number of n.- strilments The contract provides for this contmgency, by a ^^Ttur of all the defendant's rights under the contract and ofthe sums of money that had been paid. This was consKlered ffident protection by the ^^^-^^'''^:^':^^^ weement,forhe provided nothmg further. The mstallmcnts "'reTo be paid monthly. They exceeded in value the use ot 343 MonKs OK oivvAiN.Nc; rrn.K to pkusonai. .■uopkutv. the piano for the same time. Surely tl,e plaintiff was thor- ouKl^v pr<,tc.cted. Had he exerci -eel his ri.^hts when the defend- an'made his first default in the month of May, th.s controversv ,,c.uld never have arisen. He would have had no cause o complain, l^ut it is said that he indulged the defendant o h. promises to pay the installments in arrear, until the month o October, although he continued to make default durm^ the time; and it ,s claimed that this ,ives him the n,dU to recove damages for a breach of the contract, or the fa.r value of the use ot the piano during that period, or the installments rema.n- ing unpaid. ., . . , ■ , It is not pretended that the defendant was gudty of fraud n ,„akinf the plaintiff would forego his rights he would pay the overdue inst dlment, and the plaintiff so agreed and granted the mdul- gcnce, an.l on consideration thereof the defendant made the promise, a different case would have been presented. rhe:e would have been something more than a repetition o the or.g.- nal promise. But nothing appears in the complaint beyond the fact that the defendant made the promises, and the phunt.ff, relying upon them, left the piano in his possession For aught that appears, nothing was said by the plaintiff to the defendan to induce him to make the promises. It does not appear that he made any disclosure of what he intended to do. Conse- nuently the promises are left wholly without consideration. We think, therefore, that the demurrer was well taken to the first count of the plaintiff's complaint, for the reason that the plaintiffs remedy is set forth in the contract He should have reclaimed his piano on the first default. Indeed, the defend nt had the option by the contract at any time to surrender the 'UorKIlTY. utiff was thor- len the dcfeiul- lis controversy I no cause to ifentlant on his I the month of lult clurin,.,„, J._ln general, a contract for the building of a ves- scl or other thing not yet in esse docs not vest any property in the party for whom it is agreed to be constructed during the progress of the work, nor until it is Hnished and delivered, or at least ready for delivery and approved by such party. All the authorities agree in this. Towers v. Osborne, i Stra. 506; Mucklow v. Mangles, 1 Taunt. 318; Johnson v. Hunt, 11 Wend. 139; Crookshank V. Ihirrill, 18 John. 58; .Sewall v. Fitch, 8 Cow. 215; Mixer V. Ilowarth, 21 Pick. 205. And the law is the same though it be agreed that payment shall be made to the builder during the progress of the work, and such payments are made accordingly. In Mucklow v. Mangles, which arose out of a contract for building a barge, the whole price was paid in advance, the vessel was built, and the name of the person who contracted for it was painted on the stern, yet it was held that the title remained in the builder. In Mer- ritt V. Johnson, 7 John. 473, where a sloop was agreed to be built and one third of the price was to be paid when one thud of the work was done, two thirds when two thirds were done, and the balance whe 1 it was completed, and before it was finished it was sold on execution against the builder after more than a third had been done and more than that proportion of the price had been paid, the court decided that the vessel was the property of the builder and not of the person who engaged it to be constructed. Where, during the course of the transaction, the vessel or other thing agreed to be built is identified and appropriated so that the m^echanlc would be bound to complete and deliver that particular thing, and could not, without violating his contract, substitute another similar article though otherwise correspond- ing with the agreement, there would seem to be more reason for holding that the property was transferred ; still it has never been held that this was enough to pass the title. In Laidler v. Burlinson, 2 Mees. & Welsh. 602, the vessel was about one third built when the contract was made. The builder and , nioi'i'U rv. hmulrod dollars, ilcrs hail made a ind the assij^m-es to ctitablish their uilding of a ves- aiiv property in ictcd during' the tml delivered, or nich party. All rne, i Stra. 506; 3on V. Hunt, 1 1 1. 58; Scwall V. 'ick. 205. And payment shall he e work, and such low V. Mangles, barge, the whole It, and the name ted on the stern, juilder. In Mer- was agreed to lie id when one third ;hirds were done, and before it was guilder after more :hat proportion of I at the vessel was rson who engaged on, the vessel or i appropriated so te and deliver that ating his contract, jrwise correspond- to be more reason ; still it has never tie. In Laidler v. ssel was about one The builder and ANUltKWS V, nUUANT. 315 owners agreed to finish that particular vessel In a manner specially agreed upon for a price which was the eciuivalent for tlie linislii-d vessel. Ik-fore it was completod the builder became bankrupt, and the possession passed into the hands of his assignee. The court of exchequer held the true construction of tlie contract to be that the title was to pass when the ship was completed and not before. The parties only agreed to buy a particular ship u'/icn complete, and altlinugh the builder could not comply with the contract by delivering another ship, still it was considered an executory contract merely. In Atkin- son v. IJell, 8 IJarn. & Cress. 277, 15 I^"g- ^^^' ^aw, the same principle was held in respect to a contract for making spi.ming machinery, and in Clark v. Spence, 4 Adolph. .S: El. 44S, 31 Eng. Com. Law, which is the case principally relieil on by the defendants, it was admitted by the court that the appropriation of the particular ship to the contract then in question, by the approval of the materials and labor by the superintendent, did not of itself vest the property in the pur- chaser until the whole thing contracted for had been completed. In the case before us, it can not be denied that the barge, as fast as its several parts were finished, with the approval of the superintendent, became specifically appropriated to the fulfill- ment of this contract, so that Bridger h Company could not ha^e fulfilled their agreement with the defendants in any other way than by completing and delivering that identical boat. This results from the consideration that the superintendent could not be called upon to inspect and approve of the work and materials of another barge, after having performed that duty as to one ; so that the contract would be broken up unless it applied itself to this vessel. Hut it is clear that this circum- stance alone does not operate to transfer the title. The precise question ni this case is whether the concurrence of both partic- ulars—the payment of parts of the price at specified stages of the work, and the intervention of a superintendent to inspect and approve of the work and materials— produces a result which neither of them separately would effect. It is, no doubt, com- petent for the parties to agree when and upon what conditions the property in the subject of such a contract shall vest in the prospective owner. The present question is, therefore, simply one of construction. The inquiry is whether the parties in- 346 MODES OF OBTAUJIXG TITLE TO PERSONAL PROPERTY. tended by the provisions which they have inserted in their con- tract, that as soo.i as the first payment had become payable and had been paid, the property in the nnfinished barge shonld vest in the defendants, so that thereafter ^ should be at their risk as to casualties and be liable for their debts, and pass to their rep- resentatives in case of their death. Such an agreement would be lawful if made, and the doubt only is whether the parties have so contracted. The courts in England, under contracts in all material re- spects like this, have held that the title passed. In Woods v. Russell, 5 Barn & Aid. 943, 7 Eng. Com. Law, the question came before the Court of King's Bench, and Abbot, C. J., dis- tinctly declared his opinion that the payment of the installments under such a contract vested the property in the ship in the party for whom it was to have been constructed. But there was another feature in the case upon which it was finally decided. The builder had signed a ce/Hticate for the purpose of enabling the other party to procure the vessel to be registered in his name, and it was so registered accordin,T;ly while it was yet un- finished and before the question arose. The court held that the legal effect of signing the certificate for the purpose of procur- ing the registry was, from the time the registry was complete, to vest the general property in the party contracting to have the ship built. This case was decided in 1S22, and was the first announcement of the principle upon which the defendants' covnsel rely in the English courts. The case of Clark v. Spence was decided in 1S36. It arose out of a contract tor building a v>ssel, which contained both the features of superintendence and of payments according to specific stages of the work, as in Woods V. Russell, and as in the co.itract now before the court. The court of King's Bench was clearly of opinion that as fast as the diffeient parts of the vessel were approved and added to the fabrip they became appropriated to the purchaser by u^ay of contract, and that when the last of them were so added and the vessel was thereby completed it vested in ihe purchaser. The court conceded that by the general rules of law, until the last of the necessary materials was added, the thing c ntracted for wag not in existence ; and they said they had not been able to find any authority for holding that while the article did not exist as a whole and was incomplete, the general proper t;. in such parts of it had ^yi SONAI. PROPERTY. inserted in their con- d become payable and shed barge should vest nild be at their risk as , and pass to their rep- ;h an agreement would is whether the parties lets in all material re- passed. In Woods V. om. Law, the question and Abbot, C. J., dis- lent of the installments :rty in the ship in the tructed. But there was 1 it was finally decided, he purpose of enabling to be registered in his ^ly while it was yet un- The court held that the the purpose of procur- registry was complete, contracting to have the 1S22, and was the first which the defendants' case of Clark v. Spence contract tor building a ures of superintendence tages of the work, as in ;t now before the court, of opinion that as fast approved and added to the purchaser l>y way of n were so added and the in 'die purchaser. The s of law, until the last of thing c ntractcd for wag not been able to find any le did not exist as a whole t'. in such parts of it had ANDREWS V. DURANT. 347 been from time to time constructed should vest m the pu, ha er except what was said in the case of Woods v. Russell ; and hat was admitted to be a dictum merely, and not the po-nt on which the case was decided. The court however, de- cided upon the authority of that case, though w.th some hes.ta- ion. as they said, that the rights of the parties m the case before it, after the making of the first payment, were the --« ^s .f ^o n uch of the vessel as was then constructed had ^-^^y"^ ,on<.ed to the party contracting for its construct.on and had been a n,ered by him to the builder to be added to and finished ; and n.v sait tend to show a ;rty as fast as any ved. It amounts is completed the act. The provi- ark is a very usual racted for, and it f thus to assist the rk is going on in pect that he will lable period. The hat stronger if we the several stages to be the price or r expended. This /, there is strong ible portion of the secure the speedy fc Company failed nd had been paid, mtil the barge was :lollars to complete ties could have in- i was done at the s were to be made, io much out of the not to be assumed :.d very much upon n reference to the rhat argument can HULL V. HULL 349 have no force here, but, on the contrary, the mference to be drawn from our own cases and particularly from Merr.tt v Johnson, would be that the title remained in the budder under such a contract until the completion ot ihe v-sel. The foregoing considerations have led me to the concUis.on that the modern English rule is not founded upon sufhoen reasons and that it ought not to be followed. The judgment of the supreme court should, therefore, be reversed and a new trial ordered. » ..■ ^« XT V tS-> qc Barb. 28; Pitts., etc., R. Consult— Low v. Austin, 20 N. Y. 18., 25 uaro. , ' . , Co V Heck ^oI.il. 308; Williams v.Jackma.i, x60ray,Si4; ^^^l°'\^' ^VMi" Fe'rfyCo.,' 7 Ind. 5.4; Whitcomb v. Whitney, .4 M-h. 489. § 67. Things in potential existence. HULL V. HULL. [4S Conn. 250; 40 Am. Rep. 165.] Supreme Court of Errors of Connecticut, 1880. T ,K,>us, J.-The controversy in this case has reference to the ownership of six colts, the progeny of two brood ""^y^^' ^^J^^ the plaindff, some ten years prior to this suit, purchased m Boston oiL Rev. William H. H. Murray. The contract of sale pro- vided that the plaintiff might take the mares to Murray s fa.m Tthis state, of which she was and had been for several yeais he superintendent,- and there keep them as breedmg majes; and aU the colts thereafter foaled from them, ^bough s.rec by Sur;ay's stallions, were to be the exclusive property of the ^'Toftlempt has been made by Murray's creditor, or his^ h-us- tee to deprive the plaintiff of the mares so purchased, and they are now I her undisturbed possession; but the colts, whde on Murray's farm on the first of August, 1879, --^e attacheu by one of his creditors, who subsequently released the proper y o the defendant as trustee in insolvency, who had the property m his possession at the time the plaintiff brought her wnt of replevin. 350 MODES OF OnTAINING TITLE TO PERSONAL PR> PERTY. The sole ground upon which the defendant claims to hold these colts is, that there was such a retention of possession by Murray after the sale as to render the transaction constructively fraudulent as against creditors. The court below overruled this claim, and in :,o doing we think committed no error. The doctrine as to retention of possession after a sale has no application to the facts of this case. A vendor can not retain after a sale what does not then exist nor that which is a ready in the possession of the vendee. This proposition would seem to be self-sustaining. If, however, i^ needs confirmation the authorities in this state and elsewhere abundantly supply it. Lucas V. Birdsey, 41 Conn. 357 ; Capron v Porcer, 43 d. ,89 ; Spring v. Chipman, 6 Verm. 662. In Bellows v. W tils, yVerm. 599, it was held that a lessee might convey to his lessor all the crops which might be grown on the leased land during the term, and no delivery of the crops after they were harvested was necessary even as against attaching creditors, nnd that tl e doctrine as to retention of possession after the sale did not apply to property which at the time of the sale was not subject to attachment and had no real existence as property at ^ The ca^e at bar is within the principle of the above author- ities, for it is very clear that the title to the property in ques- tion when it first came in'o existence was in the pla.ntiti In reaching this conclusion It IS not necessary to hold that the n^ares became the ab.oUne property of the plaintiff under Mass- achusetts law without a more substantial and visible change of possession, or that under our law, the title to the mares being fn the plaintiff clearly as between the parties, the rule imported frou. the civil law, parties scqiiitur ventrcm, applies. We waive the consideration of these questions. It will suffice that by the express terms of the contract, the plaintiff was to have as her own all the colts that might be born from these mares. That the law will sanction such a contract is very "" Tt is true, as remarked in Perkins on Conveyances (tit. Grant, sec 60, that "it is a common learning in the law that a man can not grant or charge that which he has not ;" yet it is equally well settled that a future possibility arising out of, or depend- claims to hold possession by 1 constructively in bo doing we 2r a sale has no can not retain hich is already ion would seem mfirmation, the intly supply it. . Porter, 43 Id. allows V. Wells, it convey to his the leased land after they were ching creditors, on after the sale the sale was not ; as property at e above author- operty in ques- e plaintiff, y to hold that the itiff under Mass- visible change of the mares being the rule imported ipplies. IS. It will suffice ! plaintiff was to born from these contract is very nances (tit. Grant, le law that a man ;" yet it is equally ut of, or depend- HULL V. HULL. 351 cnt upon, some present right, property, or interest, may be the subicct of a valid present sale. The distinction is illustrated in Hobart, 133, as follows: uThe grant of all the tithe wool of a certain year is good in its creation, though it may happen that there be no tithe wool in that year; but the grant of the wool which shall grow upon such sheep as the grantor may afterward purchase, is void. It is well settled that a valid sale may be made of the wine a vineyard is expected to produce, the grain that a field .s expected to grow, the milk that a cow may yield, or the future voungborn of an animal, i Parsons on Contracts [5 Ed.], pa-e ^23, note Z-, and cases there cited; Milliard on Sales, sec. iS • Story on Sales, sec. 1S6. In Fonville v. Casey, i Murphy (^ C ), ^So, it was held that an agreement for a valuable consideration to deliver to the plaintiff the first female colt which a certain mare owned by the defendant might produce, vests a property in the colt in the plaintiff, upon the principle that there may be a valid sale where the title is not actually in the grantor, if it is in him potentially, as being a thing acces- sory to something which he actually has. And in McCurty v. Blevins, 5 Yerg. 195, it was held that where A. agrees with B. that the foal of A.'s mare shall belong to C, a good title vests in the latter when parturition from the mother takes place, though A. immediately after the colt was born sold and deliv- ered it to D. Before resting the discussion as to the plaintiff s title we ought perhaps briefly to allude to a claim made by the defend- ant both in the court below and in this court, to the effect that if the plaintiff's title be conceded she is estopped from assert- ing her claim. This doctrine of estoppel, as all triers must have observed, is often strangely misapplied. And it is surely so in this instance. The case fails to show any act or omission on the part of the plaintiff inconsistent with the claims she now makes, or that the creditors of Murray or the defendant as rep- resenting them were ever misled to their injury by any act or le-ligence o" her part. On the contrary, the estoppel is ass^erted in the face of the explicit finding that "as soon as the plaintiff became aware of the attachment of her horses she for- bade the officer taling the same, and demanded their imme- diate return to her." 353 MOnKS OK OBTAINING TITLE TO PERSONAL PROPERTY. The only fact which is suggested as furnishing the basis for the alleged estoppel is that from the first of August, 1879, to the twelfth of January next following, "no attempt was made by the plaintiff to maintain her title by suit, although she was living during the time at Guilford, where said colts were. But who ever heard of an estoppel in an action at avv predicated solely on neglect to bring a suit for the period of five months? To recognise such a thing for any period short of the statu e of limitations would practically modify the statute and create a new limitation. Furthermore, in what respect have the defendant and those he represents been misled to their injury by this fact? The plaintiff never induced the takmg of or withholding of her property. And can a tort-feasor or a wrongful possessor of another's property object to the delay m suinAim for his wrong, and claim, as in this case, an estoppel on the -round that his own wrongful possession proved a very expensive one to him, amounting even to more than the value of the property. He might have stopped the expense at any time by simply giving to the plaintiff what belonged to her. The single question of evidence which the record presen we do not deem it necessary particularly to discuss. It will suflice to remark that if the defendant's testimony was admissi- ble to show that Murray, after the sale to the pla.nt.ff (and, so far as appears, in her absence), claimed to own the mares and olts, It was a complete - id satisfactory reply for the plaintiL in rebuttal to show that Murray's own entries (presun^ably a part of the res gestae), in the appropriate books kept by h.m showed the fact to be otherwise, and in accordance with the nlaintiff's claims. . , At any rate it is very clear that no injustice was done by this ruling to furnish any ground for a new tnal. There was no error ia the judgment complained of and a new trial is not advised. See note to next case. ^im ^ PROPERTY. ing the basis for \ugust, 1879, to tempt was made ilthough she was lid colts were." at law predicated of five months? rt of the statute tatute and create respect have the ed to their injury the taking of or tort-feasor or a ;ct to the delay in case, an estoppel ion proved a very jre than the value le expense at any ilonged to her. e record presents 3 discuss. It will nony was admissi- j plaintiff (and, so )wn the mares and jly for the plaintiff ies (presumably a ooks kept by him, :cordance with the 5tice was done by :rial. )mplained of and a MODES OF OBTAINING THLE TO PERSONAL PROPERTY. 353 LOW V. PEW. [108 Mass. 374; II Am. Rep. 357-3 Supreme Judicial Court of Massachusetts, 187 T. Action of replevin by Alfred Low & Company to recover a lot of flitched halibut from the assignee in bankruptcy of John Low & Company. The parties stated the following case: In April, 1S69, as the schooner Florence Reed, owned by John Low & Company, was about to sail on a fishing voyage the plaintiffs and said John Low & Company entered into the following agreement on which the plaintiffs paid $1,500: "We, John Low & Son, hereby sell, assign, and set over unto Alfred Low & Company all the halibut that may be caught by the master and crew of the schooner Florence Reed on the vovage upon which she is about to proceed from the port ot Glou'^estcr to the Grand Hanks at the rate of five cents and a quarter per pound for Hitched halibut, to t>e delivered to said Alfred Low & Company as soon as said schooner arrives at said port of Gloucester at their wharf. And we, the said John Low & Son, hereby acknowledge the receipt of $1,500 in part payment for the halibut that may be caught by the master and crew of said schooner on said voyage," In August following John Low & Company were declared bankrupts and the defendants in this action were appointed assignees and the deed of assignment executed to them. On the return of the Florence Reed the United States mar- <;hal took possession of her and the cargo under a warrant iu the proceedings in bankruptcy and transferred his possession to the defendants as such assignees. The catch of the schoonei consisted of forty thousand bushels of halibut ; this the plaintiffs demanded, offering to pay the price stipulated in the agreement, less the $1,500 paid. The defend- ants refused the demand. The plaintiffs replevied $1,500 worth of the halibut and offered to receive the rest of the hali- but and pay for it at the stipulated rate. If on these facts the plaintiffs were entitled to recover they were to have judgment for the nominal damages, but if other- wise the defendants were to have judgment for a return with damages equal to interest at the annual rate of six per cent, on the appraised value of the fish replevied. 23 T 354 MODES OF OBTAINING TITLE TO PERSONAL PHOI'KRTY. Morton, J.— Bv the decree adjudging John Low 8c Son bankrupts, all their property, except such as is exempted by the bankrupt law, was brought within the custody of the law, and by the subsequent assignment passed to theii assignees. Williams V. Merritt, 103 Mass. 184. The firm could not by a subsequent sale and delivery transfer any of such property to the plaintiffs. The schooner which contained the halibut in suit arrived in Gloucester August 14, 1869, which was after the decree of bankruptcy. If there had been then a sale and deliv- ery to the plaintiffs of the property replevied, it would have been invalid. The plaintiffs, therefore, show no title to the halibut replevied, unless the effect of the contract of April 17, 1S69 was to vest in them the property in the halibut before the bankruptcy. It seems to us clear, as claimed by both par- ties, that this was a contract of sale, and not a mere executory agreement to sell at some future day. The plaintiffs can not maintain their suit upon any other construction, because, if it is an executory agreement to sell, the property in the halibut remained in the bankrupts, and, there being no delivery before the bankruptcy, passed to the assignees. The question m the case, therefore, is, whether a sale of halibut afterward to be caught is valid, so as to pass to the purchaser the property in them when caught. It is an elementary principle of the law of sales, that a man can not grant personal property in which he has no interest or title To be able to sell property, he must have a vested right hi it at the time of the sale. Thus it has been held that a mortgage of goods which tlu. mortgagor does not own at the time 'the mortgage is made, though he afterward acquires them, is void. Jones v. Richardson, 10 Met. 481. The same principle is applicable to all sales of personal property. Rice V. Stone, I Allen, 566, and cases cited; Head v. Goodwin, 37 Maine, 181. It is equally well settled that it is suflficient if the seller has a potential interest in the thing sr-ld. But a mere possibility or expectancy of acquiring property, not coupled with any inter- est does not constitute a potential interest in it, within the meaning of this rule. The seller must have a present interest in the property, of which the thing sold is the product, growth or increase. Having such interest, the right to the thing sold when it shall come into existence, is a present vested right, and diH lL phopkrty. Dhn Low & Son s is exempted by stody of the law, J theii assignees, rm could not by a such property to ed the halibut in vhich was after the n a sale and deliv- ;d, it would have w no title to the tract of April 17, the halibut before imed by both par- a mere executory plaintiffs can not tion, because, if it lerty in the halibut no delivery before he question in the 3Ut afterward to be er the property in f sales, that a man has no interest or have a vested right s been held that a as not own at the afterward acquires et. 481. The same lal property. Rice Head v. Goodwin, it if the seller has a mere possibility or lied with any inter- 3t in it, within the e a present interest he product, growth, ht to the thing sold, ent vested right, and LOW V. PEW. 355 the sale of it is valid. Thus a man may sell the wool to grow upon his own sheep, but not upon the sheep of another; or the crops to grow upon his land, but not upon land in which he has „o interest. 2 Kent Com. [lo Ed.] 46S, (641) note a ; Jones V Richardson, 10 Met. 4S1; Bellows v. Wells, 36 Verm. 509; Van Hoozer v. Corey, 34 Barb. 9; Grantham v. Haw- ley. Hob. 132. The same principles have been applied by this court to the assignment of future wages or earnings. In Mulhall v. Quinn, 1 Gray, 105, an assignment of future wages, there being no contract ofservice, was held invalid. In Hartley v. Tapley, 2 Gray, 565, it was held that, if a person is under a contract of service, he may assign his future earnings growing out of such contract. The distinction between the cases is, that in the former the future earnings are a mere possibility, coupled with no interest, while in' the latter the possibility of future earnmgs is coupled with an interest, and the right to them, though con- tingent and liable to be defeated, is a vested right. In the case at bar, the sellers, at the time of the sale, had no interest in the thing sold. There was a possibility that they might catch halibut; but it was a mere possibility and expec- tancy, coupled with no interest. We are of opinion that they had no actual or potential possession of, or interest in, the fish; and that the sale to the plaintiffs was void. The plaintiffs rely upon Gardner v. Hoeg, 18 Pick. 168, and Tripp V. Brownell, 12 Cush. 376. In both of these cases it was held that the lay or share in the profits, which a seaman in a whaling voyage agreed to receive in lieu of wages, was assignable. The assignment in each case was, not of any part of the oil to be made, but of the debt which under the shipping articles would become due to the seaman from the owners at the end of the voyage. The court treated them as cases of assignments of choses in action. The question upon which the case at bar turns did not arise, and was not considered. Judgment for the defendants. CoNsuLT-Williams v. Briggs, 11 R. I. 176, 23 Am. Rep. 518; Parker V.Jacobs, 14 S. C. 112, 37 Am. Rep. 724; Arques v. Wasson 51 Cal. 620; Gittings V. Nelson, 86 111. 591; Hunter v. Boswortn, 43 W'^. 583; Sawyer v.Gerrish, 70 Me. 254, 25 Am. Rep. 3^3; Watk.ns v. Wyatt, 9 Baxt. 250, 40 Am. Rep. 90; Hutchinson v. Ford, 9 Bush. S'S, 15 Am. Rep.711; Van Hoozer v.Coroy, 34 Barb. 9; Ruthrautf v. Hagenbuch, 58 Pa. St. 103; Heald v. Builders' Ins. Co., in Mass. 38; McCaffrey v. Woodin, 65 N. Y. 459. T 356 MODES OF OBTAINING TITLE TO PERSONAL PHOPEHTV. § 68. The price. McCONNELL v. HUGHES. [29 Wis. .S37-] Stiprcvic Court of Wisconsin, 1872. The plaintiff alleges in his complaint that on the seventh day of February, 1870, he bargained and sold to the defendan s c.gh h:ndred'and Ly-five and fifty-three sixtieths buseh o wh a at the agreed price of ten cents per bushel less than tl e M ^■ waukee price on any day thereafter which he, the sa.d plaint^ Thould name; and that within a few days after the sa.d seventh d'yo February he delivered said wheat to the defendants, at then- n.ill in the city of Berlin, and the defendants received the same in pursuance of the terms of such bargain and sale ; and that he Zward named the twenty-fourth day of March, ibyo, as the day fixing the price, and notified the defendants thereof and on tl Itdav demanded of them payment of the amount which, ac- ceding to the terms of the contract, was due him from then. The plaintiff also avers that, according to the terms o the agreem nt. seventythree cents per bushel was the price to be p!kl him by the defendants. He further avers that the defend- ants oaid him $7^ on account of the wheat. T'edefendants, in their answer, state that they were, on the seventh day of February, .870, engaged in the manufacture of flom- at the city of Berlin; that they had, in the mill, facd.ties foi st";;g about six thousand bushels of grain, and that they re- ceived the plaintiff's wheat in store for him, in pursuance of an agreement that they should purchase the same whenever there- a^er the plaintiff should elect to sell, at ten cents ess than the MUwaukL price on the day of sale, and that while tl.e whea was thus in store and before the plaintiff elected to sell, to wit : r„ the eleventh day of March, 1870, their mill, together with the plaintiff's wheat, was destroyed by fire without their f aid . A iury was waived and the action was tried by the court. The court foind in substance that the allegations of the complaint ;:;^ tme and gave judgment for the plaintiffs; from which the defendants appealed. ^>Jm L PKOI'EHTY. MCCONNELL V. llUCillKS. 357 1872. , the seventh day of ; defendants eight bushels of wheat ess than the Mil- , the said plaintiff, er the said seventh defendants, at their received the same, d sale ; and that he darch, 1870, as the mts thereof, and on amount which, ac- e him from them, to the terms of the was the price to be ers that the defend- it they were, on the the manufacture of the mill, facilities for in, and that they re- , in pursuance of an ime whenever there- n cents less than the that while the wheat ected to sell, to wit: lill, together with the hout their fault, ed by the court. The ions of the complaint tiffs ; from which the Lyok, J.— The bill of exceptions does not purport to contain all of the evidence. Wc can not, therefore, review the evidence, but must pre- sume that it sustains the findinRS of fact by the circuit court. Tliat court having found that the material allegations of the complaint were proved, it follows that if the complaint states a valid cause of action, the plaintiff was entitled to judgment. We think that the complaint does state a valid cause of iction. It avers that an executory contract for the sale and 'purchase of wheat was made by the parties, and that, in pur- sumcc thereof, the plaintiff delivered to the defendants, and the defendants accepted and received the wheat. It must be true that by such delivery and acceptance the title to the wheat be- came vested in the defendants, and the right to have the price therefor, when the same should be determined as provided in the contract, in like manner became vested in the plaintiff. But it is urged on behalf of the defendants that the transac- tion was invalid as a sale, because the contract did not limit the plaintiff to the selection of any particular day, or of a day withm a specified time, on which the market price of wheat in Mil- waukee should control the price of the wheat in question, but left him the option to select any day in the future for the pur- pose of fixing the price. The contract furnishes a criterion for ascertaining the price of wheat, leaving nothing in relation thereto for further negotia- tion between the parties. This is all that the law requires. Storv on Sales, sec. 220. No case has been cited, and we are unable to find one, which holds that it is essential to the valid- ity of a sale in such cases that the criterion agreed upon should, by the terms of the contract of sale, be applied, and the price thereby determined, on any specified day or within a specified time. Judge Story, in the section of his treatise above cited, evidently does not intend to lay down any such rule. It may be that, if the plaintiff had delayed unreasonably to make such selection after being requested to make the same, he might be compelled to do so. But we do not decide this point. It is further argued that, after a valid sale and before pay- ment of the price, there must be a debt owing by the vendee to the vendor, while in this case, until the price of the wheat was ascertained, there was no indebtedness. The latter part of this 358 MODES OF OHTAINING TITLE TO PEHSONAL PUOPEIITY. proposition is erroneous. As soon as the wheat was delivered, the defendants owed the plaintiff therefor. There was there- fore a debt, but the amount thereof was not ascertained. It remained unliquidated until the price of the wheat was deter- mined. The objections that the assessor could not list the claim for the price of the wheat for taxation, and that the same could not be reached by garnishee p«-ocess at the suit of a creditor of the plaintiff, while such price remained undetermined, present no practical difficulties. The assessor would fix the value of the demand according to his best judgment as in other cases of the valuation of property and credits ; and the creditor in the gar- nishee proceeding would probably be subrogated to the rights of the plaintiff in respect to determining the contract price for the wheat. The judgment of the circuit court is affirmed. Consult— Herrick v. Carter, 56 Barb. 41 ; Fuller v. Owen, 36 Ala. 73; Harden v. Dwyer, 47 Minn. 246; Gartner v. Hand, 86 Gn. 558; Hale v. Haynes, 54 N. Y. 389; Newlan v. Dunham, 60 111. 237; Wittkowsky v. Warren, 71 N. C. 451; Rovengo v. Defferarl, 40 Cal. 459; Callaghan v. Myers, 89 111. 570; Greene v. Lewis, 85 Ala. 225, j Am. St. Rep. 42; Blow V. Spear, 43 Mo. 497, 97 Am. Dec. 412; Humaston v. Tel. Co., zo Wall. 20. KOUNTZ V. KIRKPATRICK. [72 Pa. St. 376.] Supreme Court of Pennsylvania^ 1873. Assumpsit by Joseph Kirkpatrick and James Lyons, trading as Kirkpatrick & Lyons, to the use of Frederick Fisher and others, trading as Fisher Bros., against William J. Kountz, for failure to deliver a certain quantity of crude petroleum, when called upon to do so December 31, 1S69, incompliance with his contract previously made. Judgment for plaintiffs, and de- fendant brings error. Agnew, J. —The second, third, fifth, sixth, seventh, eighth, eleventh, twelfth, thirteenth, fourteenth, fifteenth, and sixteenth errors, are not well assigned, for all the answers ot the court to ^^M ■,%. <%♦. ^^\^x^ IMAGE EVALUATION TEST TARGET (MT-S) y £/ ./^.^ A .^'^ ^^ :/. 1.0 If i- IIM I.I J3.2 1*^ 140 2.2 20 1.8 1.25 11.4 11.6 Photographic Sciences Corporation 23 WEST MAIN STREET WEBSTER, N.Y. H580 (716) 872-4503 CIHM/ICMH Microfiche Series. CIHM/ICMH Collection de microfiches. Canadian Institute for Historical Microreproductions / Institut Canadian de microreproductions historiques KOUNTZ V. KlRKi-.^ TRICK. 359 the points were omitted. When a co-rice," on the other hand, is the sum in money or other equivalent set upon an art,- cle bl a seller, which he demands for it. Id. Value and pnce are, therefore, not synonyms, or the necessary equivalents of each other, though commonly, market value and market pncc are legal eg took the same view in Trout v. Kennedy, n \\nght, ,0, That was the case of a trespasser, and the jury had been told that the plaintiff was entitled to the just and full value of the property, and if at the time of the trespass the market was depressed, too much importance was not to be given to that fact. "If" (says Judge Strong) "at any particular time, there be no market demand for an article, it is not, of course, on that account of no value. What a thing will bring in the market at a given time, is perhaps the measure of its value then; but it is not the only one " These cases plainly teach that value and market price are not always convertible terms; and certainly there can be no difference, in justice or law, in an unnatural depression and an unnatural exaltation in the market price-neither is the true and only measure of value. 364 >.ODES or O.vrA.N.Nc/ TITUC to PKUSOVAL 1.KO.-KHTV. These ,cner.l principles .n the doctrine of davna^s ami .uU>or.ties, prove that an inHated specuh.t.ve market p kc not I "suit of natural causc-s, hut of artificial means to stunulate ces bv unlawful combinations for the purpo..s of gan., can ,,, be ;ie<,ntinKUe means of estimating jus^ compcnsat.on It :t. to th: purchaser more than he ougi.t to have, and com- Lis the seller to pay more than he ought to gue, and . s efore not a just criterion. There is a case n. our own s e b • dn.^ strongly on this point: Blydenburgh et a . v. Welsh ^^ l\'. Rco ^1^1 Judge Baldwin had charged the jury m ^';:^^ ''-H on are satisfied from the evidence, that .L on that day a fixed price in the market, you must be !:::rned by it; if the evidence is doubtful as to th^ pnce^ nd ;°tnesses v"ary in their statements, you must adop that wh.ch " h k best accords with the proof in the case " In grant- ^ ewtrinl Tnd-e llopkinson said: "It is the pnce-the :?r ;^i^fth:articLthat is to furnish the measure of bit' Now what is the price of a thing, part.cularly the t^eturice' We consider it to be the value, the rate at ::i d th 1 ing is sold. To make a market there must be :^^and s^ing, purchase and sale. "Jhe owner of ar ^^le holds it at a price which nobody wdl g.ve for . , c^^ th t be said to be its market value? Men sometn.es put fan. U ll Fices upon their property. For reasons persona anc ne U ar they mav rate it much above wh.t any one would g. . o" that th; value? Further, the holders of an article flou for instance, under a false rumor, which, ,f true, wouh 'u"ment its value, may suspend their sales, or put a pr.ce npo^ i „" ccording to its value in the actual state of the market ;,t" c^dinc. to what hr their opinion will be its market pr.c : l; U provided the rumor shall prove to be true. n such c Je it i clear that the asking price is not the wonh of th hing on the given day, but what it is supposed it wdl be wor "future day, if the contingency shall happen winch >s I : ; is addit.onal value. To take such a price as the ru o cb m.ges is to make the defendant pay what n. truth nev, : ; r'a ue of the article, and to give to the plaint.ff a pro- ;;;; breach of the contract, which he never would have ma. '^^j:;;:^::jended sales upon a rumor tending to enhan the price, put by Judge Ilopkinson, bears no compar.son [ISONAL I'llOrKKTV. rtrinc of chima^cs and lative market price, not cial means to stimulate : purpot^s of sain, can just compensation. It ight to have, and com- i1 egitnna e com- b nations, for temporary, special, and selfish objects, mdepend- e of th objects of lawful commerce: a forced and violent "vversionofthelawsof trade, not within the contemplation of the regular dealer, and not deserving to be regarded as a i^per b^sis upon which to determine the value when t e^act lecomes material in the administration of justice. I may close these sayings of eminent jurists with ^ e angtiage c^^ Chief Justice Gibson, upon stock-jobbing contract W .1 on D. is SW & S 523. "To have stipulated," says he, "for'arightto"recrui; on separate account, would hav-e given to the agreement an appearance of trick, like those of stock- obbing contracts, to deliver a given number of shares at a cc- 366 .MODICS OK OIITAINMNC; Tni.K TO PKKSONAI, I'llOI'KU lY. tain clay, in wliich the seller's performance iias been forestalled liy what is called cornering; in other words, buying up all the floating shares in the market. These contracts, like other stock-jobbing transactions, in which parties deal upon honor, are seldom subjected to the test of judicial experiment, but they would necessarily be declareil fraudulent." Without adding more, I think it is conclusively shown that what is called the market price, or the quotations of the articles for a given day. is not always the only evidence of actual value, but that the true value may be drawn from other sources, when it is shown that the price for the particular day had been unnaturally inflated. It remains only to ascertain whether the defendant gave such evidence as to recjuire the court to submit to the jury to ascertain and determine the fair market value of crude oil per gallon, on the thirty-first of December, 1869, as demanded by the defendant in his fifteenth point. There was evidence from which the jury might have adduced the follow- ing facts, viz. : That in the month of October, 1S69, a num- ber of persons of large capital, and among them Kirkpatrick& Lyons, combined together to purchase crude oil, and hold it until the close of the year 1S69; that these persons were the holders, as purchasers, of a large number of sellers' option contracts, similar to the one in suit ; that they bought oil largely, and determined to hold it from the market until the year 1S70 before selling; that oil, in consequence of this combination, ran up in price, in the face of an increased supply, until the thirty-first day of December, 1S69, reaching the price of seven- teen to eighteen cents per gallon, and then suddenly dropped as soon as the year closed. Major Frew, one of the number, says: "It was our purpose to take the oil, pay for it, and keep it until January i, 1S70, otherwise we would have been heading the market on ourselves. Mr. Long says that on the third of January, 1S70, he sold oil to Fisher & Brother (the plaintiffs) at thirteen cents a gallon, and could find no other purchaser at that price. Several witnesses, dealers in oil, tes- tify that they knew of no natural cause to create such a rise in price, or to make the difference in price from December to January. It was testified, on the contrary, that the winter pro- duction of oil was greater in December, 1869, than in former years by several thousand barrels per day, a fact tending to ONAI. I'llOI'KU TY. e has been forestalled lis, buyinj; up all the contracts, like other ties deal upon honor, I experiment, but they ncliisively shown that tations of the articles lence of actual value, 1 other sources, when icular day had been ascertain whether the e the court to submit fair market value of December, 1869, as 1 point. There was adduced the foUow- ctober, 1S69, a num- 5 them KirkpatrickiV: udc oil, and hold it se persons were the er of sellers' option ey bought oil largely, : until the year 1S70 of this combination, ed supply, until the ig the price of seven- en suddenly dropped one of the number, i oil, pay for it, and ve would have been .ong says that on the isher & Brother (the could find no other :s, dealers in oil, tes- create such a rise in ; from December to ■, that the winter pro- 869, than in former y, a fact tending to KOUNTZ V. KlKKrATUlCK. 367 reduce the price, when not sustained by other means. Mr. Iknn says he knew no cause for the sudden fall in price on the first of January, 1870, except that the so-called combina- tion ceased to buy at the last of December, 1869. It was, therefore, a fair (luestion for the jury to determine whether the price which was demanded for oil on the last day of December, 1869, was not a fictitious, unnatural, intlated, and temporary price, the result of a combination to "bull the mar- ket," as it is termed, and to compel sellers to pay a false and swollen price in order to fulfill their contracts. If so, then such price was not a fair test of the value of the oil, and the jury would be at liberty to determine, from the prices before ami after the day, and from other sources of information, the actual market value of the oil on the thirty-first of December, 1S69. Any other cause would be unjust and injurious to fair dealers, and would enable gamblers in the article to avail themselves of their own wrong, and to wrest from honest dealers the fruits of their business. It can not be possible that a '"corner," such as took place a few weeks since in the market for the stock of a western railroad company, where shares, worth in the ordinary market about sixty dollars each, were by the secret operations of two or three large capitalists, forced up in a few days to a price over two hundred dollars a share, can be a lawful meas- ure of damages. Men are not to be stripped of their estates by such cruel and wrongful practices; and courts of justice can not so wholly ignore justice as to assume such a false standard of compensation. Our views upon the effect of the afiidavit of defense, on which the learned judge in a great measure rules the question of damages, will be expressed in the case of Kountz V. The Citizens' Oil Refining Co. [72 Pa. St. 393], in an opinion to be read immediately. Judgment reversed, and a venire facias de novo awarded. Consult— James v. Muir, 33 Mich. 223; Shealy v. Edwards, 73 Ala. 175, 49 Am. Rep. 43; Taft v. Tr.nis, 136 Mass. 95; Lovejoy v. Miehels, SS Mich. 15; Morrison v. Smith, 130 111. 304. 3')S MODKS Ol- oniAININti 1111. IC TO I'KKSON.M. I'UOl'iillTY. 2. The Statute of Frauds. § 69. What are goods, wares, and merchandise. TISDALi: V. HARRIS. [20 Pick. 9.] Supreme Judieial Court of Massaehu^etts, 1838. Shaw, C. |. — I^ut by far tlic most important question in the case arises on tlie objection, that tiic case is within the statute of frauds. This statute, wliich is co])icci precisely from the Enfjiish statute, is as follows: "No contract for the sale of goods, wares, or merchandise for tlie price of ten j^ounds ($33.33) or more, shall be allowed to be j?ood, except the purchaser shall accept part of the ^oods so sold, and actually receive the same, or give something in earnest to bind the bar- gain, or in part payment, or that some note or memorandum in writing of the said bargain be made and signed by the par- ties to be charged by such contract, or their agent therei iito lawfully authorized." This being a -contract for the sale of shares in an incorporated company in a ncighi)oriiig state, for the price of more than ten pounds, and no part iiaving been delivered, and no purchase- money or earnest paid, the question is, whether it can be allowed to be good, without a note or memorandum in writing, signed by the party to be charged with it. This depends upon the question, whether such shares are goods, wares, or mer- chandise within the true meaning of the statute. It is somewhat remarkable that this question, arising on the St. 2y Car. II., in the same terms, which ours has copied, has not been definitely settled in England. In the case of Pick- ering V. Appleby, Com. Rep. 354, the case was directly and fully argued, before the twelve judges, who were equally divided upon it. But in several other cases afterward deter- mined in chancery, the better opinion seemed to be, that shares in incorporated companies were within the statute as goods or merchandise. Mussell v. Cooke, Finch. Free. 533 ; Crull v. Dodson, Sel. Cas. Ch. 41. «i IISONAL I'UOPlillTY. rands. nerchandise. RIS. !sac/ii/.'hlv penal and coercive, and tended to deprive a man in trade of 'all his property. But most joint stock companies were founded on the hypothesis at least, that most of the saare- holders took shares as an investment and not as an object of traffic • and the construction in question only decided that by taking and holding such shares merely as an investment, a man should not be deemed a merchant so as to subject himself to the highly coercive process of the bankrupt laws. These cases, therefore, do not bear much on the general question. ' The main argument relied upon, by those who contend that shares are not within the statute, is this: That the statute provides that such contract shall not be good, etc., among other things, except the purchaser shall accept part of the -oods. From this it is argued that by necessary implication The statute applies only to goods of which part may be deliv- ered. This seems, however, to be rather a narrow and forced construction. The provision is general, that no contract for 5# 370 MODKS OF OmAlNlNG TITLK TO I'KHSONAI. I'KOl'KKTY. the sale of goods, etc., shall be allowed to be good. Th exception is, when part are delivered ; but if part can not bi delivered, then the exception can not exist to take the case on of the general prohibition. The provision extended to a grea variety of objects, and the exception may well 'ne construed t apply only to such of those objects to which it is applicable without affecting others, to which from their nature it can no apply. Thci-e is nothing in the nature of stocks, or shares in com panics, which in reason or sound policy should exempt cor tracts in respect to them from those reasonable restrictions designed by the statute to prevent frauds in the sale of othe commodities. On the contrary, these companies have liecom so numerous, so large an amount of the property of the con- munity is now invested in them, and as the ordinary indicia c property, arising from delivery and possession, can not tak place, there seems to be peculiar reason for extending the pre visions of this statute to them. As they may properly b included under the term "goodo," as they are within the reaso and policy of the act, the court are of opinion, that a contra for the sale of shares, in the absence of the other reeiuisito: must be proved by some note or memorandum in writing; an as there was no such memoraiidum in writing, in the presei case, the plaintiff is not entitled to maintain this action. A to the argument that here was a part performance, by a pa; ment of the money on one side, and the delivery of the certit cate on the other, these acts took place after this action wt brought, and can not, therefore, be relied upon to show a cans of action when the action was commenced. Verdict set aside, and plaintiff nonsui Consult— Pray V. Mitchell, 60 Me. 430; Boardman v. Cutler, i: Miss. 3SS; Fine V. Hornsby, 2 Mo. (App.) 61 ; Somerby v. Uuntin, 11 Mass. 279, 19 Am. Rep. 459; Green v. Brookings, 23 Mich. 48, 9 Ai Rep, 74; Killinore v. Hewlett, 4S N. Y. 569; Purner v. Piercy, 40 M 212, 17 Am. Rep. 591; Marshall v. Ferguson, 23 Cal. 65; Kingsley Holbrook, 45 N. II. 313, 86 Am. Dec. 173; Powell v. McAskan, 28 M 70; Cent. Branch R. Co. v. Fritz, 20 Kan. 430, 27 Am, Rep. 175; Job son V. Buck, 35 N. J. (L.) 338, 10 Am. Rep. 273; Ide v. Stanton, Vt. 6S5, ir Am. Dec. 698. rKKSONAr- I'ROl'KUTY Dwccl to be good. The ; but if part can not be exist to take the case out ,'ision extended to a >i;rcat may well lie coiistrned to 3 which it is applicable, )m their nature it can not stocks, or shares in com- Dolicy should exempt con- e reasonable restrictions, luds in the sale of other e companies have l)ecome the proj^erty of the com- as the ordinary indicia of possession, can not take ion for extending the pro- \s they may properly be i they are within the reason )f opinion, that a contrac e of the other reeiuisitos, norandum in writing; and in writing, in the present naintain this action. As rt performance, by a pay- the delivery of the certiti- ace after this action was died upon to show a cause eiiccd. side, and plaintiff nonsuit. 50; Boardman v. Cutler, 12S ) 6r; Somerby v. Huntin, iiS trookings, 33 Mich. 48, 9 Am. 69; Punier v. Piercv, 40 Mil. son, 23 Cal. 65; Kingsley V. ); Powell V. McAskan, 28 Mo. , 430, 27 Am, Rep. 175; John- Rep. 273; Ide V. Stanton, 15 MODES OF OnrAlMNT. TITLE TO PKHSON.M- rUOl'KRTV. 37 I S 70. Contracts for work, labor, and materials— The English doctrine. LEE V. GRIFFIN. [I R. & S. 272.] English Court of >^iicc>i's Bench, i86l. Declaration against the defendant, as the executor of one Frances P., for goods bargained and sold, goods sold and deliv- ered, and for work and laVior done and materials provided by the plaintiff as a surgeon dentist for the said Frances P. Plea, that the said Francis P. never was indebted as alleged. The action was brought to recover the sum of £21 for two sets of artificial teeth ordered by the deceased. At the trial, before Crompion, J., at the sittings for Middle- sex after Michaelmas term, 1S60, it was proved by the plaintiff that he had, in pursuance of an order from the deceased, pre- pared a model of her mouth, and made two sets of artificial teeth ; as soon as they were ready he wrote a letter to the de- ceased, requesting her to appoint a day when he could see her for the purpose of fitting them. To this communication the deceased replied as follows: — "My bear Sir: — I regret, after your kind effort to oblige me, my health will prevent my taking advantage of the early day. 1 fear I may not be able for some days. Yours, etc., "Frances P." Shortly after writing the above letter Frances P. died. On these facts the defendant's counsel contended that the plaintiff ought to be nonsuited, on the ground that there was no evidence of a delivery and acceptance of the goods by the deceased, nor any memorandum in writing of a contract within the meaning of the seventeenth section of the statute of frauds, 29 Car. 3, c. 3, and the learned judge was of that opinion. The plaintiff's counsel then contended that, on the authority of Clay v. Yates, i II. it N. 73, the plaintiff could recover in the action on the count for work and labor done, and materials provided. The learned judge declined to nonsuit, ar.d directed a verdict for the amount claimed to be entered for the plaintiff, with leave to the defend- ant to move to enter a nonsuit or verdict. 372 MODES OF OBTAINING TITLK TO PERSONAL PROPERTV. Crompton, J.— I think that this rule ought to be made aliso- lute. On the second point I am of the same opinion as I was at the trial. There is not any sufficient memorandum in writ- in.' of a contract to satisfy the statute of frauds. The case de. cided in the house of lords, to which reference has been made during the argument, is clearly distinguishab'c. That case only decided that if a document, which is silent as to the particulars of a contract, refers to another document which contains such particulars, parol evidence is admissible for the purpose of show- ing what document is referred to. Assuming, in this case, that the two documents were sufficiently connected, still there would not be any sufficient evidence of the contract. The contract in question was to deliver some particular teeth, to be made in a particular way, but these letters do not refer to any particular bargain, nor in any manner disclose its terms. The main question which arose at the trial was, whether the contract in the second count could be treated as one for work and labor, or whether it was a contract for goods sold and de- livered. The distinction between these two causes of action is sometimes very fine ; but where the contract is for a chattel to be made and delivered, it clearly is a contract for the sale of .Toods. There are some cases in which the supply of the mate- Hals is ancillary to the contract, as in the case of a printer sup- plying the paper on which a book is printed. In such a case an action might perhaps be brought for work and labor done and materials provided, as it could hardly be said that the subject- matter of the contract was the sale of a chattel ; perhaps it is more in the nature of a contract merely to exercise skill and labor. Clay v. Yates, i H & N. 73' t"''"^^ °" ''^ o"'" peculiar circumstances. I entertain some doubt as to the correctness of that decision; but I certainly do not agree to the proposition that the value of the skill and labor, as compared to that of the material supplied, is a criterion by which to decide whether the contract be for work and labor, or for the sale of a chattel. . Here, however, the subject-matter of the contract was the sup- ply of goods. The case bears a strong resemblance to that of a tailor supplying a coat, the measurement of the mouth and fitting of the teeth being analogous to the measurement and fit- ting of the garment. RSOXAL PUOPERTS'. )tight to be made abso- same opinion as I was : memoranilum in writ- frauds. The case dc. "crence has been made shal-'c. That case only nt as to the particulars nt which contains such :or the purpose of show- iming, in this case, that lected, still there would tract. The contract ia teeth, to be made in a t refer to any particular terms. ; trial was, whether the reated as one for work for goods sold and de- two causes of action is tract is for a chattel to contract for the sale of the supply of the mate- le case of a printer sup- nted. In such a case an ork and labor done and be said that the subject- )f a chattel ; perhaps it ely to exercise skill and rned on its own peculiar as to the correctness of ,gree to the proposition compared to that of the ;h to decide whether the r the sale of a chattel. lie contract was the sup- g resemblance to that of MTient of the mouth and he measurement and fit- LKE V. lilMKI'MX. O/.') ITiKL, J. — I am of the same opinion. I think that the deci- sion in Clay v. Yates, i II. & N. 73, is perfectly right. That was not a case in which a party ordered a chattel of another which was afterward to be made and delivered, but a case in which the subject-matter of the contract was the exercise of skill and labor. Wherever a contract is entered into for the manu- facture of a chattel, there the subject-matter of the contract is the sale and delivery of the chattel, and the party supplying it can not recover for work and labor. Atkinson v. Hell, 8 13. &. C. a"? is, in my opinion, good hav, with the exception of the dictum of Bayley, J., which is repudiated by Maule, J., in Grafton v. Armitage, 2 C. B. 339, where he says. "In order to sustain a count for work and labor, it is not necessary that the work and labor should be performed upon materials that are I the property of the plaintiff." And Tindal, C. J., in hisjudg- I ment in the same case, page 340, points out that in the applica- j tion of the observations of Bayley, J., regard must be had to the particular facts of the case. In every other respect, therefore, the case of Atkinson v. Bell, S B. & C. 277, is law. I think that these authorities are a complete answer to the point taken at the trial on behalf of the plaintiff. When, however, the facts of this case are looked at, I cannot see how, wholly irrespective of the question arising under the statute of frauds, this action can be maintained. The contract entered into by the plaintiff with the deceased was to supply two sets of teeth, which were lo be made for her and fitted to her mouth, and then to be paid for. Through no default on her part, she having died, they never were fitted ; no action can therefore be brought by the plaintiff. Blackburn, J. — On the second point, I am of opinion that the letter is not a sutVicient memorandum in writing to take the case out of the statute of'frauds. On the other point, the question is whether the contract was one for the sale of goods or for work and labor. I think that in all cases, in order to ascertain whether the action ought to be brought for goods sold and delivered, or for work and labor done and materials provided, we must look at the particular contract entered into between the part.es. If the contract be such that, when carried out, it would result in the sale of a chattel, the party can not sue for work and labor ; but if the Mi 374 MODES OF OHTA1NINO TITI.F. TO PKUSONAr, PKOI'KUTY. result of the contract is that the party has done work and hibor which ends in nothing that can become the subject of a sale, the party can not sue for goods sold and delivered. The case of an attorney employed to prepare a deed is an ilhu.cration of this latter proposition. It can not be said that the paper and ink he uses in the preparation of the deed are goods sold and delivered. The case of a printer printing a book would most probably fall within the same category. In Atkinson v. Hell, S 13. &. C. 277, the contract, if carried out, would have resulted in the sale of a chattel. In Grafton v. Armitage, 2 C. H. 340, Tindal, C. J., lavs down this very principle, lie draws a distinction between the cases of Atkinson v. Hell, 8 B. tbnt flosrribnd in this report should be considered as a contract for the sale of goods, within the meaning of the statute of frauds, or a contract for labor, services, and materials, and therefore not within that statute, is a question upon which there is a conflict of authority. According to a long course of decisions in New York, and in some other states of the Union, an agreement for the sale of any commodity not in existence at the time, but which the vendor is to manufacture or put in a condition to be delivered (such as ilour from wheat not yet ground, or nails to be made from iron in the vendor's hands), is not a contract of sale \ COOKt: V. MII.I.AHD. 3S' comply with the order. Whether the clapboards c;m IkmUviiu-.I to have been in existence may be more doubtful. If a part of tiie order is within the statute of frauds, and a portion of it without it. the whole transiction must be deemed to l)e within it, as an entire contract can not. in this case, be divided or ap- portioned. Cooke V. Toml)s, 2 Anst. 420; Chaper v. i?eckott, ~ T. U. .'oi ; Mechelen v. Wallace, 7 A. i^ 1^. 19! Thomas v. Williams, 10 n. ik C. 66|; Loomis v. Newhall, 1=; Pick. 139- 1 think it clear that the contract was in its nature entire. It was in evidence that the ii\teni:on was to buy enough, in connection wltli what Percival had on h -nd, to make up a l)oat load. This could only be accomplished by using the entire amount of the order. Accordingly, even if the contract for the clapboaids was not a sale, it can not be separated fiom the rest of the order, and the cases above cited are applicable. The (luestion is thus reduced to the following proposition: Is a contract which is, in form, one of sale of lumber then hi ex- istence for a fixed price, where the seller agrees to put it into a state of lltncss to (ill the order of the purchaser, his work being included in the price, in fact, a contract for work and labor and not one of sale, and accordingly not within the statute of frauds? The New York statute is made applicable to the "sale of any goods, chattels, or things in action," for the price of $50 or more. The words "goods and chattels" are, literally taken, probably more comprehensive than the expressions in the Eng- lish statute, "goods, wares, and merchandise." It will be assumed, however, in this discussion, that they are equivalent. There are at least three distinct views as to the meaning of the words in the statute. These may be called, for the sake of convenience, the English, the Massachusetts, and the New York rules, as representing the decisions in the respective courts. The English rule lays especial stress upon the point, whether the articles bargained for can be regarded as goods capable of sale by the professed seller at the time of delivery, without any reference to the inquiry whether they were in existence at the time of the contract or not. If a manufacturer is to produce an article which at the time of the delivery could be the subject of sale by him, the case is within the statute of frauds. The rule excludes all cases where work is done upon the goods of an- 3^^ MDDKS 111 (i|!T.\I\l\(; Tirt.K It) 1M;US()\AI. I'IIOPKHTY, other, or even materials siij^plied or acMud to the <'ooils of another. Thus it' a larriaj^e iiiakir shoiihl repair my carriatfe, liotli fiirnisliint,' hilior ami supplyiiiLC materials, it would he a contract for worii and hil)or, as ilie vviiole result of his efforts would not produce a chattel which could he the subject of sale hy him. If on tiie other hand, hy the contract he lays out work or materials, or both, so as to proiUice a chattel which he could sell to me, the contract is within the statute. This conclusion has been reached only after f^reat discussion and much Huctua- tion of opinion, but must now be rejjarded as settled. The leatliii}^ case upon this point is Lee \ . (jritFin, i Mest tS: Smith, J72; iJenj. .Sales, 77. The action was there broujjjht by a den- tist to recover jQ2\ sterlinjj for two sets of artificial teeth, made for a deceased lady of whose estate the defendant was executor. The court held tliis to be the sale of a chattel within the statute of frauils. Hlackburn, J., stated the principle of the decision in a clear maimer: "If the contract be sucli that it will result in the sale of a chattel, then it constitutes a sale, but if the work and labor be bestowed in such a manner as that the result would not be anythiiif^ which could properly be said to be the subject of sale, the action is for work and labor." The Massachusetts rule, as applicable to <^oods manufactured or modified after the barjjain for them is made, mainly retjards the point whether the products can, at the time stipulated for delivery, be rel{01'i;it I V. the seller, but also to the coiulltion that the property to l>e tlelivered by bim shall answer the stipulated description. A rit'ht of inspection to ascertain whether such condition has been complied with is in the coiileniplation of l)oth rarties to such a contract; and no complete and linal acceptance, so as irrevoca- bly to vest the property in the buyer, can take place before he has exercised or waived that right. In ortler to constitute such a llnal and complete acceptance, the assent of the buyer should follow, not precede, that of the seller. I5ut where the contract is for a spccilic, ascertained chattel, the reasoning is altogether different. Ecpially, where the offer to sell and deliver has been first made by the seller and afterward assented to by the buyer, and where the offer to buy and accept has been first made by the buyer and afterward assented to by the seller, the contract is complete by the assent of both parties, and it is a contract the expression of which testifies that the seller has agreed to sell and deliver, and the buyer to buy and accept the chattel." Pages 4S9, 490. This view is confirmed by Maberley v. Sheppard, 10 Hing. go. That was an action for goods sold anc! delivered, and it was proven that the defendant ordered a wagon to be made for him by the plaintiff, and, during the progress of the work, fur- nished the iron work and sent it to the plaintiff, and sent a man to help the plaintiff in fitting the iron to the wagon, and bought a tilt and sent it to the plaintiff to be put on the wagon. It was insisted, on these facts, that the defendants had exercised such a dominion over the goods sold as amounted to an acceptance. The court, per Tindal, Ch. J., held that the plaintiff had been rio-htly nonsuited, because the acts of the defendant had not been done after the wagon was finished and capable of deliv- ery, but merely while it was in progress, so that it still remained in the plaintiff's yard for further work until it was finished. The court added: "If the wagon had been completed and ready for tlclivery and the defendant had then sent a workman of his own to perform any additional work upon it, such con- duct on the part of the defendant might have amounted to an acccpt.mce." See, also, IJenj. Sales, chap. 4. and cases cited, The plaintiffs, in the case at bar, rely much upon the decision in Morton v. Tibbett, 15 Ad. .t El. (X. S.) 428. They main- tain that this case clearly establishes that there may i)e an ac- KKSONAI, i>i{ori:ii I V. tliat tlie property to l)e ipiilatcfl description. A • such coiuUtioii has hcfii :)f botli rarties to siu'h a ceptaiu'c, so as irrcvoca- cau take phice liefore lie , order to constitute such .scut of the buyer shouKI But where the contract 2 reasonin<^ is altofjether ;e!l and deliver has been assented to l>y tlie l)uyer. it has been first made by ly the seller, the contract .s. and it is a contract the ! seller has a-^reed to sell and accept the chattel," y V. vSheppard, lo 15in|- OltlAINlNG TITLE TO I'KUhON AI. I'ltOl'i: UTV. \vaiitiii<,' ill tlie case at liar. Tlic proof of acceptance was the act of resale before examination. The point of tlie decision is, tiiat tliis was sucii an exercise of dominion over tiie goods as is inconsistent witii a continnancc of the ri}j;lits o!" property in tlie vendor, and therefore evidence to justify a jury in tindinj,' accept- ance as well as actual receipt hy the buyei. Hunt v. Mecht, S Excli. S14. Even when interpreted \r this way, Morton v. Tihbett can not be rcjjarded as absohuoly settled law in l^ngland. Sec Coombs V. Bristol i*^ I^xeter R'y Co., ^ II. I't N. 510; Castle v. Sworder, Cf Id. S2S. The court of queen's bench recofr- nizes it, while the court of exchecpier has not received it with favor. Later cases distinctly hold that the acceptance must take place after an opportunity by the vendee to exercise an option, or after the doiiifj of some act waiving it. IJramwell, H., said in Coombs v. iJristol i*v: Exeter R'y Co. : "The cases establish that there can be no acceptance where there can be no opjiortunity for rejecting." All the cases were reviewed in Smith v. Hudson. 6 Hest & Smith, .\;^i, A. I). 1S65, where Hunt v. Hecht w as approved. The two last cited cases disclose a principle aj^plicable to the case at bar. In Hunt V. Hecht the defendant went to the plaintiff's ware- house and there inspected a heap of ox bones, mixed with others inferior in quality. The tlefendant verbally agreed to purchase those of the better quality, which were to be separated from the rest, and ordered them to be sent to his wharfinger. The bags were received on the ninth, and examined next d.iy by the defendant, and he at once refused to accept them. There was held to be no acceptance. The case was put upon the ground that no acceptance was possible till after separation, and there was no pretense of an acceptance after that time. Martin, I?., said that an acceptance, to satisfy the statute, must be something niore than a mere receipt. It means some act done after the vendee has exercised or had the means of cxer- cis'Tig liis right of rejection. In Smith v. Hudson, supra, barley was sold on November 3, 1S63, by sample, by an oral contract. On the seventh it was taken by the seller to a railway station, where he had delivered grain to the purchaser on several prior dealings, and where it was his custom to receive it from other sellers. The barley was EUSONAf, I'HOPERTY. if of accept ancf was tlio ; point of (lie decision is, lion over tiie goods as is rifjhts ol" property in tlie y a jnry in tiiulinj^ accept- uyei. Hunt v. Ilecht, S Morton V. Til)bett can law in I'^ntjland. Sec 7, II. iV: N. 510; Castle )£ queen's bench recofj- lias not received it with Kit the acceptance must he vendee to exercise an waivinfj it. IJramwell, r R'y Co. : "The cases incc where there can be lie cases were reviewed 431, A. D. i^Cy^, where o last cited cases disclose r. It to the plaintiff's ware- : ox bones, mixed with dant verbally agreed to liich were to be separated ; sent to his wharfinger, nd examined next day by to accept them. There :ase was put upon the lie till after separation, iptance after that time. satisfy the statute, must pt. It means some act had the means of cxer- vas sold on November 3, n the seventh it was taken B he had delivered grain ngs, and where it was sllers. The barley was CdOKi: V. MII.I.AKn. 395 left at the freight house of the railway, consigned to tlu- order of the purchaser. It was the custom of tlu- trade for thi' buver to compare the sample with tiie bulk as delivered, and if the examination was not satisfactory, to reject it. Tiiis right con- tinued in tlie present case, notwithstanding the delivery ol the grain to the railway company. On the ninth the inirchaser became bankrupt, and on the eleventh the seller notified the station- master not to deliver the barley to the purchaser or his assignees. The court held that there was no acceptance suHlcient to satisfy the statute. The most that could be said was that the delivery to the companv, considered as an agent of the buyer, was a receipt. It could not be claimed tiiat it was an acceiUance, the carrier having no implied authority to accei^t. The buyer had a right to see whether the bulk was according to the sam- ple, and until he had exercised that right there was no accept- ance. Opinion of Cockburn, Ch. J., 4^^; ^'''■N -'•**"' Caulkins V. Ilellman, 47N. Y. 449, 7 A'"- 'y the statute." The case was stiDiiyjcr than tliat iiiider discussion, as the {j<><>''s wcmc specific ami fully set apait lor the purchaser at the lime of tiie suhseipient convcrsa- lioiis. No distinction is perceived between future acts to he !i!.gly made out and sent by a shopman. The amount of the goods was seventy pounds. The deten.lant looke.l at the account, and asked what discount would be .,ll„wed for rea.lv money, and was told five pounds per cent; he replied tliat it was too little, and reiiuested to see the person of whom he bought the goods (Baldey). as he coul.l bargam with him respecting the discount, and said that he ought to be allowed twenty pounds per cent. The gooils were afterward sent to the defendant's house, and he refused to accept them. The lord chief justice thought that this was a contract for .roods of more than the value of ten pounds within the meanmg of the seventeenth section of the statute of frauds, :uul not within any of the exceptions there mentioned, and dirccteil a nonsuit ; but gave the plaintiffs leave to move to enter a ver- dict in their favor for seventy pounds. A rule having accord- ingly been obtained for that purpose. AnnoTT C. J.— We have given our opinion upon more than one occasion that the 29 Car. 2, c. 3, is a highly beneficial and remedial statute. We are, therefore, bound so to construe it as to further the object and iutenr.ion of the legislature, which was the prevention of fraud. It appeared from the facts of this case that the defendant went into the plaintiff's shop and bargained for various articles. Some were severed from a l.„-ive the same." It would itiiictly denotinjij an actual . and an actual takinsjf pos- ;ld that such a transfer and se, it would seem to follow le vendee nii^ht maintain , and leave the vendor to doctrine would be highly actor V to find that the law nction had no such effect. ot be considered to have they have remained from seller. The plaintiffs are seventeenth section of the »n is, whetlier there was a The 39 Car. 2, c. jj, was perjuries ; and it must be ection that the legislature it of ten pounds might be to bring tainted evidence e that on the same day, and fendant contracted with the to a much greater amount alue been set upon the whole loubt of its being a contract ids within the seventeenth that the circumstance of a h article makes no such dif- the operation of that law. time must elapse bet"' en order to make the contract t of a purchaser leaving a id returning after an interval another. If the /eturn to rant a supposition that the HAI.DKV v. I'AKKKIJ. 399 whole was intended to be one transaction, I should hold it one entire contract within the meaning of the statute. I am, there- fore, of opinion that this rule must be discharged. lIoi.Rc VI), J. — I am of the same opinion. The intention of tlie statute was that certain requisites should be observed in all contracts for the sale of goods for the price of ten pounds and upward. This was all one transaction, though composed of different parts. At first it appears to have been a contract for goods of less value than ten pounds, but in the course of the dealing it grew to a contract for a much larger amount. At last, therefore, it was one entire contract within the meaning and mischief of the statute of frauds, it being the intention of that statute that where the contract, either at the commence- ment or at the conclusion, amounted to or exceeded the value of ten pounds, it should not bind unless the retiuisites there mentioned were complied with. The danger of false testimony is quite as great where the bargain is ultimately of the value of ten pounds, as if it had been originally of that amount. It mi-st, therefore, be considered as one contract within the mean- ing of the act. With respect to the exception in the seventeenth section, it may, perhaps, have been the intention of the legisla- ure to guard against mistake where the parties mean honestly as well as against willful fraud ; and the things required to be done will have the effect of answering both those ends. The words are, "except the buyer shall accept part of the goods so sold and actually receive the same, or give something in ear- nest to bind the bargain or in part of payment, or that some note or memorandum in writing of the said bargain be matle and signed by the parties to be charged by such contract, or their agents thereunto lawfully authorized." Each of tho.-.c particulars cither shows the bargain to be complete, or still further that it has been actually in part performed. The change of possession does not in ordinary cases take place until the completion of the bargain ; part payment also shows the com- pletion of it; and in like manner a note or memorandum in writing signed by the parties plainly proves that they under- btood the terms upon which they were dealing, and meant finally to bind themselves by the contract therein stated. In the present case there is nothing to show that some further 400 MODES OF OBTAINING TITLE TO PERSONAL rilOPERTV. arrangement might not remain unsettled after the price for each article had been agreed upon. There was neither note nor memorandum in writing; no part of the price was paid, nor was there any such change of possession as that contemplated by the statute. Upon a sale of specific goods for a specitlc price, by parting with the possession the se'ler parts with his lien. The statute contemplates such a parting with the pos- session ; and. therefore, as long as the seller preserves his con- trol over the goods so as to retain his lien, he prevents the vendee from accepting and receiving them as his own within the meaning of the statute. Best, J.— It was formerly considered that a delivery of the goods by the seller was suihcient to take a case out of the sev- enteenth section of the statute of frauds; but it is now clearly settled that there must be an acceptance by the buyer as well as a delivery by the seller. The statute enacts that, where the bargain is for something to the value of ten pounds, it shall not bind, unless something unequivocal has been done to show that the contract is complete. Nothing of that kind having been done in this case, if the dealing is to be considered as one entire transaction it is clear that the plaintiffs can not recover; whatever this might have been at the beginning, it was clearly at the close one bargain for the whole of the articles. The account was all made out together, and the conversation about discount was with reference to the whole account. It is, there- fore, very distinguishable from Emmerson v. Heelis, 2 Taunt. 38, where a complete baigain was made as to each article as soon as the auctioneer had signed his name to it. Rule discharged. CoNSVLT— AUard v. Greasert. 61 N. Y. I, 12 Am. Rep. 48; Jenners V. Wendell, 51 N. H. 67; Gault v. Brown, 48 N. II. 1S3; Walker v. Lovell, 28 N. II. 13S, 61 Am. Dec. 605; Goodwin v. Clark, 65 Me. 280; lUown V. Sanborn, 21 Minn. 402; Carpenter v. Galloway, 73 Ind. 41S; Wells V. Day, 124 Mass. 38; McMuller v. Riley, 6 Gray, 506. SONAI. PROPERTY. after the price for each was neither note nor ; price was paid, nor as that contcrnphUcd : goods for a specific ; se'Ier parts with his parting with the pos- [;ller preserves his con- lien, he prevents the 3ni as his own within that a delivery of the ! a case out of the sev- 3 ; but it is now clearly by the buyer as well enacts that, where the ten pounds, it shall not been done to show that that kind having been be considered as one intiffs can not recover ; eginning, it was clearly of the articles. The the conversation about le account. It is, there- son V. Heelis, 2 Taunt, le as to each article as ame to it. Rule discharged. 12 Am. Rep. 48; Jenners , 48 K. II. 183; Walker v. Ddwin V. Clark, 65 Me. 280; ;r V. Galloway, 73 Iiid. 418; tiley, 6 Gray, 506. ■•I MODES OF OBTAINING TiTLli TO PKRSONAI, PKOl'EUTV. 40^ § 74. Acceptance and receipt both necessary. CAULKINS V. HELLMAN. [47 N. Y. 449; 7 Am. Rep. 461.] Court of Appeals of Ncu' 2'ork, i8y2. Action to recover for wines and casks sold on a verbal con- tract. Rapali.o, J. — The instructions to the jury as to the legal effect of the delivery of the wine at Blood's Station in conform- ity with the terms of the verbal contract of sale were clearly erroneous. No act of the vendor alone, in performance of a contract of sale void by the statute of frauds, can give validity to such a contract. Where a valid contract of sale is made in writing, a deli very- pursuant to such contract at the place agreed upon for delivery, or a shipment of the goods in conformity with the terms of the contract, will pass tlie title to the vendee without any receiptor acceptance of the goods by him. But if the contract is oral, and no part of the price is paid by the vendee, there must be not only a delivery of the goods by the vendor, but a receipt and acceptance of them by the vendee to pass the title or make the vendee liable for the price ; and this acceptance must be voluntary and unconditional. Even the receipt of the goods, without an acceptance, is not sufficient. Some act or conduct on the part of the vendee, or his authorized agent, manifesting an intention to accept the goods as a performance of the con- tract, and to appropriate them, is required to supply the place of a written contract. This distinction seems to have been overlooked in the charge. The learned judge instructed tHe jury, as a matter of law, that if they were satisfied that the wine or any portion of it was actually delivered in pursuance of the verbal contract, that circumstance was sufficient to take the contract out of the statute of frauds, and the contract was a valid one, and might be enforced notwithstanding it was not in writing. The attention of the jury was directed to the in^juiry 26 402 MOnES OK Ol.TAININ.i TITI.K T.. n:KSONAI. PUOPKUT V. whether the phiintiffs had faithfully performed their part of the contract rather than to the action of the defendant, and the iudee proceeded to state that if the wine was dehvere.l to the Upress company at Hloo.l's Station in good ..rder n, mer- chantaMe condiiion, and corresponded in quality and a ! snh- stantialand material respects with the samples then he m- structed the jury as a matter of law. that if they found the con- tract as (iordon testitle.l with respect to the place of delivery, llr.t was a complete delivery under the contract, and passed the title from the plaintiffs to the defendant, and the plaintiffs were entitled to recover the contract price of the wines. The plaintiffs counsel su-.-.^ests in the statement of facts ap- pended to his points, that Gordon was the a-ent of the .letend- „u to accept the -oods at Blood". Station. l?ut this statement 'is not home out 1-v the evidence; Gordon was the a.^ent <.f the pluntiffs for the sale of the goods; it was incumhent upon them to make the shipment. Ml that (iordon testifies to is that the defendant requested him to make the hest hargain he could for the freight. He does not claim that he had any authority to accept the goods for the defendant. , , , , ■Vccordin- to the defendant's testimony. Gordon clearly had „o such authority, nor did the defendant designate any convey- ance, and the judge submitted no question to the jury as to the ,uthority either of Gordon or the express company to accept the goods. On the contrary, he repeated that if when the wine was rielivered at Hlood's Station it was in good order and corre- sponded with the samples, the plaintiffs would be entitled to a verdict for the contract price, upon the ground that the parties bv the contract (assuming it to be as claimed by the plaint.tfs), tKcd upon that station as the place of delivery; "that it was true that the defendant was not there to receive it, and had no ■lacnt at Blood's Station to receive it, and had no opportunity io inspect it there; but that that was a contingency he had nol seen, and which he might have guarded against in the coiv '"it is evident that the learned judge applied to this case th. rule as to delivery, which would be applicable to a valid, writ ten contract of sale, but which is inapplicable when the eontrac is void bv the statute of frauds. The effect of the delivery of goods at a railway station, to b forwarded to the vendee in pursuance of the terms of a verb;. ISOXAI. P!U)l'i:U 1 V. oimed tlK'ir part of tlie he deloiulant, ami the ic was dclivi'ied to the good <.idcr, in mer- in (iiiality and all sul>- sainples, then he in- t if they found the con- the place of delivery, ■ontract. and passed the . and the plaintiffs were the wines. e statement of facts ap- the agent of the defcnd- ion. IJiit this statement Ion was the agent of the IS incumbent upon them m testifies to is that the lest bargain he could for he had any authority to anv. Gordon clearly had It designate any convey- tion to the jury as to the ss company to accept the hat if wiien the wine was in good order and corre- s would be entitled to a c ground that the parties hiimcd by the plaintiffs), )f delivery; "that it was to receive it, and had no , and had no opportunity 1 contingency he had not ded against in the con- ic applied to this case the pplicable to a valid, writ- [jlicable when the contract at a railway station, to be ; of the terms of a verbal I CAII.KINS V. IIKI.I.MAN. 4"3 contract of sale, was very fully discussed in tlie case of Norman V. IMiillips, 14 Mecs. and Wels. zyj, and a verdict for tlie plaintiff founded njion such a ilelivery. and upon the additional fact that tlie vendor sent an iiuoice to tiie vendee, which he retained for several weeks, was set aside. The ICnglish author- ities on the subject are reviewed in that case, and the American and I'.nglish authorities bearing upon the same question are also referred to in the late cases of Kodgers v. I'liillips, .|o X. \'. 419, and Cross v. O'Donnell, 44 Id. 661, 4 Am. Rep, 721. Tiie latter case is cited by the counsel for the plaintiffs as an authority for the proposition that a delivery to a designated car- rier is sulVicient to take the case out ol the statute ; but it does not so ilecide. It only holds that the receipt and acceptance need not be simultaneous, but that they may take place at dif- ferent times, and that after the purchaser had himself inspected and accepted the goods purchased, the delivery of them by his direction to a designated carrier, was a good delivery, and the carrier was the agent of the purchaser to receive them. Xo question, however, arises in the present case as to a delivery to a designated carrier, as the e\ itlence in respect to the agreed mode of delivery is conllicting. and no question of acceptance by the carrier as agent for the defendant was submitted to the jury. The judge submitted to the jury two questions, to which he required specific answers. First. Was the wine delivered at the railfoad station at the time agreed upon by the parties, and was it then in all respects in good order, and like the samples exhibited by the plaintiff to the defendant? and. Second. Was the wine accepted by the defendant after it reached his place of business in Xew York? The jury answered both of these questions in tiic affirmative, and it is now claimed that the answer to the second ciuestion renders immaterial any error the judge may have committed in respect to the effect of the delivery at tiie station. It is ditlicult to find any eviilence justifying the submission to the jury of the second ([uestion ; but no exception was taken to such submission. The motion for a nonsuit would have raised that point, were it not for the fact that there w as evidence to go to the jurv on the claim of $52 for barrels, and this pre- 404 MOORS OF OnTAlN-ING IITI.K TO rKRSONAI. rUOPERTY. eluded a nonsuit. We think, however, that the error in the charge may have misled the jury in passinjr upon the second <,Ufstion; at all events, it is not impossible that it should have ♦lone so. Having been instructed that upon the fact as they found it in respect to the a-ieement for a delivery at Hlood's Station, the title to the goods had passed to the defendant be- fore the receipt of them at New York, and that their verdict ."ustbe for the plaintiffs, thev may have examined the question of his acceptance of them at New York with less scr;,tiny than thev would have exercised, had they been informed that the result of the case depended upon their finding on that question. \nd the construction of the defendant's acts and language may, in some degree, have been infiuenced by the consideration thai when the wine arrived in New York the title had, according tc the theorv on which the case was submitted to them, passed t( the defendant, and he had no right to reject the wines. Further more, we think the judge erred in excluding the evidence of th^ contents of the telegram which the defendant attempted to sen. to the plaintiffs immediately upon the receipt of the wine. If, a was offered to be shown, it stated that he declined to accept th wine, it was material as part of the res gestae. A bona fid attempt, immediately on the receipt and examination of th wine, to communicate such a message, was an act on his pai explaining and qualifying his conduct in receiving the wine int his store and allowing it to remain there. And even thoug the message never reached the plaintiffs, it bore upon the quei tion of acceptance by the defendant. The objection to the ev dence of the contents of the telegram was not placed on tl ground of omission to produce the original, and the judge , his charge instructed the jury that the attempt to send this tel gram did not affect the plaintiffs' rights, for the reason that was not shown to have been received by them, and this was e cepted to. In Norman v. Phillips, 14 Mees. & Wels. 27?' tl defendant was allowed to prove that on being informed by tl railway clerk that the goods were lying for him at the statio he said he would not take them, and stress was laid upon t fact Yet this statement to the clerk was not communicated the plaintiff. Evidence of an attempt to send a message *hem to the same effect, though unsuccessful, would have be no more objectionable than the declaration to the clerk. T T KRSONAI. niOrEIlTY. r, that the error in the passiiifj upon the second vsible that it should have at upon the fact as they for a delivery at Rlood's sscd to the defendant be- rk, and that their verdict i-e examined the question k with less scrutiny than I been informed that the finding on that question. s acts and language may, by the consideration that he title had, according to mitted to them, passed to •eject the wines. Further- hiding the evidence of the fendant attempted to send receipt of the wine. If, as t he declined to accept the res gestae. A bona fide t and examination of the Te, was an act on his part in receiving the wine into there. And even though iffs, it bore upon the ques- The objection to the evi- am was not placed on the original, and the judge in ; attempt to send this tele- "hts, for the reason that it [ by them, and this was cx- 14 Mees. & Wcls. 277, the ; on being informed by the ying for him at the station, id stress was laid upon the « was not communicated to jmpt to send a message to nccessful, would have been :laration to the clerk. The \ .i CALI.KI.NS v. IIKLLMAN. 405 acts of the defendant at the time of the receipt of the goods, and ins bona fide attempt to communicate to the plaintiffs his rejec- tion of tlicm were. I think, material and competent to rebut any presumption of an acceptance arising from their retention by liiin. The judge was requested to instruct the jury that tlic tiue meaning of^the defendant's letter of March 31 was a relusal to accept "he wine under the contract. A careful examination of that letter satisfies us that the defendant was entitled to have the jury thus instructed. The letter clearly shows that the urchase- money was paid by tlic pnrchascr. Hnt the pnrchaser inspected and accepted the hoops and desij^nated the steamer npon wliich they shonUl be conveved to New Wnk. The hoops (twenty- four thousand in number at $11.50 per thousand) were thus delivered to tlie steamer, but she was sunk on lier voya<,'e ii the Chesapeake Hay. Tiie defenihuUs refused to pay for tin hoops and pleaded the statute of frauds, \erdict for plaintiffs: jud^nncnt thereon allirmed at general term ; defendants appealct to this court. Emm,, C. — On the trial, after proving that the statute o frauds in force in Maryland was substantially like our own, thi defendants moved that the plaintiffs be nonsuited on the grouiu that the contract of sale was void by that statute, and the cour denied the motion; and this ruling raises the only question fo our consideration in this case. There was no note or memorandum of the contract and n part of the purchase money was paid by the buyers; and henc unless the l)uyers accepted and received the hoops, within th meaning of the statute, the contract was void. A purchase may accept without receiving and he may receive withoi accepting; and in order to comply with the statute of fraud: he must Itoth accept and receive. Here the defendants acceptc the hoops. One of them saw them in plaintiffs' yard; and tl contract had reference to this particular lot of hoops which tl plaintiffs finally delivered. There is nothing in the statu which requires that the accepting and receiving shall be at tl same time. Either may precede the other; and after both ha' •:i5S()NAI. ritOl'KltTY. S'ELL. ;p. 721.] ross afjainst X. and IT. iiin1)er of hoops Ijouf^lit in 1S63. There was no part of the pmchase- It the purchaser iiispecteil 1 the steamer upon wliich rk. The hoops (twenty- pcr tliousaiul) were tluis sunk on her voyage in s refused to pay for tlie s. \'erdict for plaintiffs; rm; defendants appealed iving that the statute of antially like our own, the e nonsuited on the ground ;hat statute, and the court lises the only question for n of the contract and no by the buyers ; and hence ,ed the hoops, within the was void. A purchaser he may receive without ith the statute of frauds, •re the defendants accepted n plaintiffs' yard; and the lar lot of hoops which the is nothing in the statute d receiving shall be at the other ; and after both have cuoss V. ()'i>r,N-Ni:i-i.. 407 concurred the statute har, been complied witli and the contract becomes operative and valid. McKnight v. Duidop. :^ N. Y. :;,^7. The defendants agreed to take these identical hoops, an.laftor receiving them and thus fully complying with the statute thev coidd not reject them upon any ol)jecti<.n to their ([uality. Tlie onlv (luestion then is. did they receive tiiem within the meaning of the statute? And this involves the in(iuiry whether in a case where tin- purchaser has accepted the goods a deliverv t.. a carrier designated by himsell will answer the requirement of the statute as to receiving the goods by the purchaser. I am of opinion that it will. It has linally been settled, both in this country and in Kngland, that a deliv- ery to a general carrier not designated by the purchaser, is not a "sullicicnt compliance with the statute. (Uodgers v. Phillips, .10 N. V. 519.) And for the best of reasons. In such a case the purchaser has done nothing beyond making the void contract. He has neither accepted nor received the goods himself nor authorized or designated any agent to do it for him. Hut in this case the purchasers designated die agents of the "Curlew" to receive and transport the hoops to them. They were the agents of defendants for the purpose of receiving the hoops from the plaintiffs. It is not necessary to determine in this case that a mere car- rier designated by the buyer can both accept and receive for him so a"s to make a compliance with the statute; but I can tinil no reason founded upon principle or authority to doubt that after the buyer has accepted the article purchased, a carrier designated by him to take and transport it can bind him as his acrent by receiving it. While there is not upon this question entire harmony in the views of judges and while the authorities can not all be 'reconciled, the general drift of them is toward the conclusion I have reached. 2 Tarsons on Con. 326; Out- water v. Dodge, 6 WeiKl. 397; The People v. Ilaynes, i\ Id. 546; Glen V. Whitaker, 51 Barb. 451; Spencer v. Hale, 30 Vt. ^14: Maxwell V. Brown, 39 Me. 98 ; Hanson v. Armitage, 5 Barn. iS: Aid. S57' Acebal v. Levi, 25 Eng. C. L. 170; Coats V. Chaplain, 43 Id. 831 ; Morton v. Tibbett, 69 Id. 427. It is said by some writers that to create such an appropriation of the goods bv the buyer as will answer the meaning attached to the words "'accept and receive" in the statute there must be 40S MODES OF OnTAlNlNG TITLE TO riCllSONAI, I'HOPERTY. such an actual delivery by the seller as will destroy all lien fo tlie purchase price or rij,'ht of Htoppa,i,'e i/i ininsitu. This ti tlif full extent is not true. The seller has a lier. for the pur chase price of the j,'uo. son V. Lay, 7 L. R. 436, it is "a kind of etiuitable lien adopte by the law for the purpose of substantial justice." When th seller retakes the property in the exercise of this right of sto) page, he is not reinvested with the title but simply placed i the actual possession of the goods, holding them as security ft the purchase price. The stoppage must be while the goods are in transitu an that is usually when they are not in the actual possession ( the buyer under such circumstances as not to take away tl right of stoppage. This right exists, although the goods ai shipped upon the buyer's own vessel consigned to him at li place of residence. Stubbs v. Lund, 7 Mass. 453; Hsley Stubbs, 9 Id. 65 ; Story on Sales, sec. 336. The fact that tl right of stoppage exists is no evidence that both the title ai possession have not passed to the buyers. The contract sale may be in writing, part of the purchase money may ha been paid, and there may have been a part delivery, and yet the seller consigns the goods by a carrier to the buyer, to delivered to him at the place of their destination, the right stoppage exists. And this may be so, even if the buyer is al master of the vessel, and he in person takes the goods and loa them upon his own vessel, provided, as in this case, the scl consigns the goods to the buyer, to be carried by him to th place of destination. Pars, on Mar. Law, 335, etc. Henc( hold that a carrier designated by the buyer may receive I goods purchased so as to make a compliance with the stati of frauds ; and this leads to an affirmance of the judgme All concur. , Judgment afTirmed with coi See note to next case. PEUSONAI. rUOPERTY. IS will destroy all lien for <^c in Ininsitu. Tliis to :r has a lien for the piii- remaiii i'l his possession, larily parts with the \w>- hem to a carrier. In the its, although the title has has delivered the goods This lien is an arliitrary y Lord Kcnyon in Ilodg- il of e(iiiital>lc lien adopted itial justice." When the rcise of this right of stop- itle but simply placed in )lding them as security for ;oods arc in trnnsitii and I the actual possession of as not to take away the 5, although the goods are consigned to him at his 1, 7 Mass. 453; Ilsley v. ic. 336. The fact that the ice that both the title and buyers. The contract of purchase money may have 1 a part delivery, and yet if arrjer to the buyer, to be ;ir destination, the right of so, even if the buyer is also )n takes the goods and loads , as in this case, the seller be carried by him to their •. Law, 335, etc. Hence I ;he buyer may receive the ompliance with the statute firmance of the judgment. idgment afTirmed with costs. )i;s Ol- OBTAINING TITLF. TO I'KKSONAI. PHOl'lll IV. jO^ MOI § 76. But not an acceptance. ALLARD V. GREASERT. [61N. Y. I.] Commission of Affcals of Ncxv York^ 1874. Action for goods solil and delivered. Defendant firm orally agreeil with n .igcnt of plaintiffs to buy by sample the follow- ing bill of hats and caps : Ot case No. 361, K '•<"''• i^hikl's Letshorti sylvans iit$li per tloz $ 5 50 Of case No. 312, one doz. harvest hats, at 4 5° Of case No. 371, half do/. Panama hats, at 28 50 a doz. Of case No. 37:, half doz. Panama hats, at 36 00 a doz. Of CIS..' No. 326, one doz. palm leaf hats, at 2 .S" » ''"z- Of case No. 324, one doz. palm leaf hats, at 3 "^^ " ''"'=■ Of case No. 329, one doz. white Glenwood, at 15 00 a doz. Of c.e No. 159. one doz. black Alpine, at 24 ocj a doz. Of case No. 309, one doz. Leg. harvest, at 3 25 a doz. The samples were shown by the agent, m<\ Mic prices of the different styles named, and a memorandum made by the agent of the number of each kind purchased. No memorandum was made in writing, and signed by either party. When the goods were sent, by express, as ordered, defendants refused to receive them because the one dozen harvest were in some slight partic- ular different from the samples shown. Defendants moved for a nonsuit because (i) "that the agreement under which the plaintiffs seek to recover is within the statute of frauds, and void; (3) that the order for the goods constitutes one entire contract, and the plaintiffs have failed to fulfill, on their part, to deliver the harvest hats of the description ordered; that, by reason of said failure, the' defendants had a right to refuse to receive any of the goods sent." The court nonsuited plaintiffs on the last ground. Eaul, C— The judge at the circuit regarde". '.lis as an entire contract of sale, and not severable ; and it he was right in this, he properly nonsuited the plaintiffs upon that ground. 4K, MOOKS nv OinAIMN.i 11 TI.K TO 1M:U..UNAK I'lK.n.lt 1 V. If it uas an c-ntiu- contnu-t. Nvithiti the meaning ..f the law, th( plaintiffs n.i.1.1 recover oulv bv showing entire perf<.rniance l,v a full deliverv of all the articles pu.chased. Mnt -t .s no necessary h^ this case, to determine whether this was an entw. or a severable contract, because the ilefendants also move.l I.. a nonsuit upon the Kroun.l that the contract ot sale was vo. under the statute of frauds. Although the did not plac the nonsuit upon this ground, it may be co.. ..ored here. ll( nonsuited the plaintiffs, and even if he -ave a wron^ reaso for it. an.l placed it upon the wron- -round, the no.isu.t ma be upheld upon any f,"'>'""l appea-in- in the case. ^ Curtis ^ Hubbard, 1 11111,3.^''': -^im-'r v. Canaday. S3 ^■• ^- -'>N ' \m Kep. 32^,; Delano /. Richardson, 4 Den. 95. i:ven if this were a severable contract so far as relates to th performance of the same, within the meaninj,' of the statute . frauds it is an entire contract. The reasons for holding 't be such are clearly set forth in Haldey y. I'arker, 1 B. ^^ C 4 and Story, Sales, sec. 24,. This, within the meaning of t statute of frauds, is a contract for the sale of jjootls for tl price of $5oor more, and as there was no note or memorandu or payment, the cpiestion to be determli 1 is, whether t eoo.ls Nvere accepted and received by the rs so as to sat.. the statute. l?v the terms of the contra goods were be delivered to tlie Merchants' Union Express, to be carried the defendants, and they uere so delivered. It is well scttl that when there is a valid contract of sale, a delivery to a c rier, according to the terms of the contract, vests the title the property in the buyer. It was decided in Rodgers y. 1 li lips, 40 N. Y. 519, that a delivery, according to the contrr to a general carrier, not designated or selected by the buy does not constitute such a delivery and acceptance as to ans\ the statute of frauds. Hut it has been held that when the go. have been accepted by the buyer, so as to answer that port of the statute which rt-quires acceptance, a delivery to a car selected by the buyer will answer that portion of the stal Nvhich requires the buyer to receive. Cross v. O'Donnell, X Y 661, 4 Am. Rep. 721. So far as I can discover, it never yet been decided in any case that is entitled to respec authority, that a mere carrier designated by the buyer can \ accept and receive the goods so as to answer the stat I'KUsoNAi- rit')ri;u I V. ■ meaniiiK "f tlio law, the ,infj uiitiii- pi'ifonnance, puichasctl. Hilt it is not /lu'thcr this was an entiri- cfiMulant-^ also movt-il for onlract of sale was void rh the «'iil ""^ placi- he CO.. .cied here. He he ^'ave a wroiiR reason jjromul, the nonsuit may \s no note or memoranduni L-termlr 1 is, whether the y the vs so as to satisfy intra goods were to in Express, to be carried to livered. It is well settled if sale, a delivery to a car- contract, vests the title to lecidcd in Rodgers v. Phil- according to the contract, I or selected by the buyer, and acceptance as to answer een held that when the goods o as to answer that portion tance, a delivery to a carrier that portion of the statute ;, Cross V. O'Donnell, 44 far as I can discover, it has that is entitled to respect as fuated by the buyer can both as to answer the statute. AM..\H1> V. (illi;.\si;|{ r. 411 r.cni. Sales, 124. The cases upon this subject are cilrd and commented upon, and the prmciples ai)plicaMe to the question i,re so fully set forth in the two recent cases above refcrreil to 'lh;.t no further citation of authorities or extended di-- ussious at this time IS important. It will be found by an examination of ihc mthorities, that in most of the cases where a delivery to a carrier has been held to satisfy the statute of frauds, there had been a prior acceptance of the goods by the buver or his a-ent. \ buyer mav acceiH and receivt through an agent expressly or iuipli^'«llv appointed for that purpose. There is every reason for holding that a de-ign^.tcd carrier may receive for the buyer, becansehcisexprc'.i, authorized to receive, and the act of receiving is a mere formal act re(iuiring the exercise of no dis- cretion." But there is no reason for holding that the buyer in such case intende.l to clothe the ca-rier, of whose agents he mav know nothing, with authority to accept the goods, so as to conclude him as to their (luality. and bind him to take them as a compliance with a contract of which sucli agents can know nothin'-. This case furiushes as good an illustration as any. The goods were boxed ; the carrier could know nothing about them" and its agents had no right to unpack and handle them. Its sole dutv and auth.n-ity was to receive and transport them, lu sudi a case, it would be quite absurd to hold that tiie carrier had an implied authority from the buyer to accept the goods for him If the buyer do, . not accept in person, he must do it tbrou<'h an author!/, d agent. Here it is not claimed tliat there was e'xpress authority conferred upon the carrier to accept, and the circumstances are not such that such authority can be implied. Upon this last ground, therefore, the nonsuit was proper, and the judgment must be afiirmed, with costs. All concur. « CoNsuLT-Maxwell v. Brown, 39 M'l' 98, 63 Am. Dec. 6Gy, Johnson V. Cuttle, 105 M.1SS. 447, 7 Am. Rep. 545 ; Fontaine v. IJrush 40 Minn. ,41. I. Am. Rep. 722; Atherton v. Merrell, :.3 M«s«- Ui, =5 Am Hep 47; nausm.-.n v. Nye,62lnd. 485,30 Am. Rep. 197; Lloy'l v. N\ .gl% 20 G.I. 474,6s Am. Dec. 636. 4i: MODES OF OBTAINING TITLE TO I'EIISONAL PUOI'ERTY. § 77. Part payment. EDGERTON v. HODGE. [41 Vt. 676.] Supreme Court of Vermont^ i86g. Assumpsit, which was referred to a referee, who report "That on the 30th day of June, 1S64, the parties made agreement by parol, by which the defendant agreed to sell the phiintiff what new milk cheese he then had on hand, unsold, amounting to 975 pounds, and the new milk cheese should make thereafter during the season, and the plaii agreed to pay the defendant therefor at the rate of fifteen ai half cents per pound, and every twenty days thereafter agr to call at tht defendant's house in Dorset, select such chees< would be fit for market, attend its weight there, and pay defendant for the cheese so selected and weighed, and then defendant was to deliver the same to the plaintiff -it the railr depot in Manchester. The day after the above agreement made, the defendant, by his son, Albert Hodge, wrote and sen mail a letter to the plaintiff (a copy of which is annexed, d. July I, 1S64,) depositing the same at the postotfice in I RuiJert, and directed to the plaintiff at Pawlet, and receivec him by mail on the same day. The next day, after the rel mail from Pawlet to East Rupert had gone out, it being on \ urday, the plaintiff enclosed in a letter, directed to the deft ant, at East Rupert, and left it in the postoffice at Pawlel be carried by mail to the defendant, the sum of tixty doll (A copy of plaintiff's letter is hereunto annexed, and the en ope enclosing the fifty dollars is postmarked 'Pawlet, July This letter of the plaintiff was, on the 8th day of July, il handed to the said Albert Hodge, by the postmaster of ] Rupert, and it was on the same day carried by him to the fendant, opened by the said Albert, the fifty dollars refusec be received by the defendant, and the letter of the plain with the fifty dollars, and the envelope enclosing them, w by mail, returned to the plaintiff, with no communication companying them from the defendant. The plaintiff rece O PERSONAL PUOI'EllTY. EDGEUTON V. HODGE. 413 HODGE. 6.] Vermont, i86g. o a referee, who reported : 1S64, the parties made an ; defendant agreed to sell to he then had on hand, antl and the new milk cheese he le season, and the plaintiff jr at the rate of fifteen and a enty days thereafter as;reed Dorset, select such cheese as 3 weight there, and pay the J and weighed, and then the o the plaintiff -it the railroad ter the above agreement was )ert Hodge, wrote and sent by Y of which is annexed, dated me at the postotfice in East tf at Pawlet, and received bv le next day, after the return ad gone out, it being on Sat- etter, directed to the defend- the postoffice at Pawlet, to uit, the sum of fixty dollars, unto annexed, and the envel- ostmarked 'Pawlet, July 4.') m the Sth day of July, 1S64, e, by the postmaster of East lay carried by him to the de- t, the fifty dollars refused to nd the letter of the plaintiff, ^elope enclosing them, were, , with no communication ac- ant. The plaintiff received I the so enclosed wrapper, money, and letter, on the 9th of July, 1S64, and kept the same fifty dollars for six months thereafter. A daily mail is carried between the postofiices of Pawlet and East Rupert, a distance of six miles. On the 20th day of July, 1S64, the plaintiff sent word to the defendant to deliver what cheese he had fit for market to the depot in Manchester. The defendant replied to the messenger that he had no cheese for the plaintiff. No other communication ever took place between the parties in regard to the cheese after the return of the money as above stated until this suit was brought. The defendant sold all his cheese to other parties, making his first sale on the 26th day of July, 1S64. If the court shall be of opinion that from the foregoing facts the plaintiff is entitled to recover, and that the rule of damages should be the New York market price for cheese for the season of 1S64, deducting the freight and com- mission, then I find due the plaintiff $411.01. If the current price in the country, paid by purchasers and sent by them to market, is to be the rule, then I find due the plaintiff the sum of $-,06.32." "Dorset, July i, 1864. Mr. Edgerton: Sir:— Accordmg to our talk yesterday you bought my cheese for the season. I shall stand to it, but shall want you to pay me fifty dollars to bind it. I spose there is nothing holding unless there is money paid. I do not wish you to think I wish to fly from letting you have it so that it is sure. I will pay you interest on the money until the last cheese is delivered. Yours in haste. J. H. C. Ilodge, per A. H." "Pawlet, July 2, 1864. Mr. Hodge: Dear Sir:— I enclose you fifty dollars to apply on your dairy of cheese as you pro- posed. Yours truly, S. Edgerton." The court at the March term, 1S6S, Pierpoint, C. J., presid- ing, rendered judgment on the report that the plaintiff recover of^'the defendant the smaller sum reported by the referee, and for his costs, to which the defendant excepted. Wilson, J.— The parol agreement, entered into by the par- tics, June 30, being for the sale of goods, wares, and mer- chandise for the price of forty dollars and more, is withui the statute of frauds, and inoperative, unless taken out of the stat- ute by the subsequent acts of the parties. It is claimed by the 414 Monies OF OnTAIMNd TITLE TO rKUSOXAI. PIJOrKKTV. plaintiff that the defendant's letter under date of July i, and the depositing of the plaintiff's letter with the fifty dollars in the postotVice on thi- second of that month, constitute a payment oi part of the purchase money within the meaninj; of the statute. It will be observed that when those letters were written, no binding agreement had been concluded. The defendant, in his letter of July i, says: "According to our talk yesterday, you bought mv cheese for the season. 1 shall st.md to it, but shall want fifty dollars to bind it." By that letter the plaintiff was notiiicd that he could make the bargain l>inding upon himsell as well as the defendant, by paying to the defendant the sun' demanded for that purpose. The plaintiff on the second day oi Julv inclosed fifty dollars in a letter, directed to the defendant ;md deposited it in the postoflice, which letter was delivered tr the defendant on the eighth of that month. lie did not accep the money, but returned it to the plaintiff. It is clear that tlu act of depositing the letter and the money in the po?tofhce wa; not a pavment to the defendant. His letter did not direct th< monev to be sent by mail; it contains nothmg that would indi' cate that the defendant expected the plaintiff would reply In letter, or accept the proposition by depositing the money in thi postotVice; and the fact that the defendant by letter offered t( allow the plaintiff to perfect the agreement, by paying part o the purchase money, did not authorize or invite the plaintiff t( send the money by mail, or make the mail the defendant's car rier of the money. The language of the defendant's letter is 'T shall want you to pay me fifty dollars to bind it," that is, t< make it a valid contract. The money, when deposited in the postoflice, belonged t( the plaintiff; it belonged to the plaintiff while being carried \r mail to the defendant, and it would continue the property of thi plaintiff unless accepted by the defendant. The plaintiff tool the risk not only of the safe conveyance of the money to tiv defeu'.hint, but also as to the willingness of the defendant ti accept it. The defendant's letter, not constituting such a not or memorandum of the agreement as the statute required, left i optional with the defenilant to accept or refuse part paymen when offered to him, the same as if the defendant had sent t the jilaintiff a verbal communication of the same import as th defendant's letter. A point is made by counsel as to whethe -T 'ERSOXAI, nj(M'r.UTV. mder ilate of July i, and •ith the Hfty dollars in the , constitute a j)ayment of i meaning of the statute, letters ware wiittcn. no I. The defendant, in his :> our talk yesterday, }ou ■hall st.md to it, hut shall at letter the plaintiff was ain binding upon himself to the defendant the sum ntiff on the second day or directed to the defendant ch letter was delivered to onth. lie did not accept itiff. It is clear that tiie aney in the po?toiHce was > letter did not direct the > nothing that would intli- j plaintiff would reply hy positing the money in the nilant by letter offered to ement, by paying part of J or invite the plaintiff to mail the defendant's car- the defendant's letter is: ars to bind it," that is, to 2 postofHce, belonged to tiff while being carried by ntinue the projjerty of the lant. The plaintiff took ^ancc of the money to the igness of the defendant to it constituting such a note the statute required, left it pt or refuse part payment the defendant had sent to ji the same import as the ; by counsel as to whether EDOEirrov V. iioixjk. 4'5 tiic money was conveyed and delivered or offered to the delend- ant, within a reasonable time after his letter was recei\ed by the plaintiff, but it seems to ns that the time the money was offered is not material. We think, even if the plaintiff had gone immediately after receiving the defendant's letter, and offered and tendered to him the fifty dollars, the defendant would have been under no legal obligation to accept it. The mere offer of the defendant to receive the money would not estop him from refusing to accept it ; but in order to take the I case out of the operation of the statute, it recpiired the agree- ment or consent of both parties, as to payment by the plaintiff ; and acceptance of it by the defendant. Upon the facts <.f this I case, we think the rights of the parties rest upon and are to be I determined by the verbal agreement entered into by them on I the thirtieth of June, and that their subseciuent attempts to J make that agreement a valid contract can not aid the plaintiff. I The statute provides that "no contract for the sale of any goods, I wares, or merchandise, for the price of forty tlollars or more, I shall be valid, unless the purchaser shall accept and receive I part of the goods so sold, or shall give something iu earnest to bind the bargain, or in part payment, or unless some note or memorandum of the bargain be made in writing, and signed by the party to be charged thereby, or by some person thereunto liy him lawfully authorized." The very language of the statute above quoted implies that in whichever wav the parties verlially agree or propose that contract for the sale of goods, wares, or merchandise, for the price of $40 or more, shall be made exempt from the statute of frauds, whether it be by the purchaser accepting and receiv- ing part of the goods so sold, by giving something in earnest to bind the bargain, or in part payment, or by making a note or memorandum of the bargain, it must be done, if done at all, by the consent of both parties. It is obvious that it would require the consent of the purchaser to accept and receive part ol the goods, and he could not receive them unless by consent of the seller; the purchaser could not give something in earnest to bind the bargain, or in part payment, unless the seller accept and receive it; nor could a note or memorandum of the bargain be made and signed unless by the consent of the party to be charged thereby. A valid contract is an agreement or covenant 4l6 MODES OF OBTAIXING Tl IM-: TO PERSONAL PROPERTY. between two or more persons, in which each party binds hin self to ilo or forbear some act; and each acquires aright t what the other promises ; but if the parties, in making a coi tract lii >) ! paper was not a sufficient leged bargain signed by the evidence was not admissible lum as could be admitted, as a suflicient memorandum, e was a member of the firm itness then testified that the nd that he and the defendant ivritingthe initials "J. II.F." id that before the defendant e 2 o'clock, he accepted the k SANnOUN V. 11. Act. 1:11. 4^.^ proposition, and so stated to the di-fendant verbally. The wit- ness testified that he signed his initials on behalf of the plaintiffs, and that he understood the defendant to sign for the ilrin of Ilohbine & Company. This evidence was not denied by the defendant. The judge ruled that said paper, with the expla- nation given, if Richardson was believed, was a sufficient note or memorandum, and was binding on the defendant if the jury found him to be a partner as alleged. The jury found a ver- dict for the plaintiffs, and the defendant alleged exceptions. IJicKLOW, C. J. — The note or memorandum on which the plaintiffs rely to maintain their action contains all the requisites essential to constitute a binding contract within the statute of frauds. It is not denied by the defendant that a verbal accept- ance of a written offer to soil merchandise is sufficient to con- stitute a complete and obligatory agreement, on which to charge the person by whom it is signed. In such case, if the memo- randum is otherwise sufficient when it is assented to by him to whom the proposal has been made, the contract is consummated by the meeting of the minds of the two parties, and the evi- dence necessary to render it valid and capable of enforcement is supplied by the signature of the party sought to be charged to the offer t") sell. Indeed, the rule being well settled that the signature of the J 'endant only is necessary to make a binding contract within the provisions of the statute relating to sales of merchandise, it necessarily follows that an offer to sell and an express agreement to sell stand on the same footing, inasmuch as the latter, until it is accepted by the other party, is in effect nothing more than a proposition to sell on the terms indicated. The acceptance of the contract by the party seeking to enforce it may always be proved by evidence aliunde. The objections on which the defendants rely are twofold. The first is that the note or memorandum does not set forth upon its face, in such manner as to be understood by the court, the essential elements of a contract. But this position is not tenable. The nature and description of the merchandise, the quantity sold, the price to be paid therefor, the terms of payment, and the time within which the article was to be deliv- ered, are all clearly set forth. But it is urged that the paper does not disclose which of the parties is the purchaser and ,)2| Monies OK OHTAINlN<; Tl il.K TO IMUlhONAL 1'1'OI'KUTV. whidi tlic seller, iiiul that no piircliascr is in fact named in tl paper. This would he a fatal olijiction if well founded. 'I'he can he no contract or valid niemoranduni of a contract vvhii does not show who arc the c()ntractiny the i)laintifl The stipulation is explicit to deliver merchandise to S. \i. Co. It ccrt.iinlv needs no ar<;umcut to demonstrate th an agreement to deliver <,'oo(ls at a fixed price and on speciti terms of payment is an aj,neemenl to sell. Delivery of goo at a stipulated price constitutes a sale; an apeement for su- delivery is a contract of sale. Nor can there be any dou raised as to the intrinsic import of the memorandum concerriii the character or capacity in uhicii the parties are intended 1)0 named. A stipulation to deliver merchandise to a pers clearly indicates that he is the purchaser, because in every va sale of goods delivery must be made by the vendor to the v( dee. We can therefore see no ambiguity in the insertion of t name of the purchaser or seller. The case is much stronger favor of the validity of the memorandum in this respect th that of Salmon Falls Mfg. Company v. Goddard, 14 llo 446. There only the names of the parties were inserted, wi out any word to indicate which was the buyer and which m the seller. It was this uncertainty in the memorandum wh formed the main ground of the very able dissenting opinion Mr. Justice Curtis in that case. So in the leading case of Hai v. Ogden, 3 Johns. 399, there was nothing in the memorandi to show which of the two parties named agreed to sell the m chandise. But in the case at bar, giving to the paper a reas< able interpretation, as a brief document drawn up in the ha of business and intended to express in a few words the terms a bargain, we can not entertain a doubt that it indicates v> suilicient clearness that the plaintiffs were the purchasers, ; the defendant the seller of the merchandise, on the terms thei expressed. Indeed, we can see no reason why a written agi ment by one party to deliver goods to anotlif- pnvty does no clearly show that the latter is tlv pu' laser and the former seller as if the agreement ha ' .u express terms by one sell goods to the other. The other objection to the morandum is that the name the party sought to be charged does r )t appear on the face I'lUlhONAL I'l'.oI'KUTV. scr is in fact iiamcil in tlie 1)11 if well I'oiindfil. There ntlmn of a contract wliich iy tl'.e plaintiffs, cr merchandise to S. 11. tS: ncnt to demonstrate that llxed price and on specitied ) sell. Delivery of ^ooils le ; an agreement for such or can there be any donlit e memorandnm concerning he parties are intended to cr merchandise to a person user, becanse in every valid B by the vendor to the ven- i-" v. U. S., 136 U. S. 83; Peck v^ Vande- mark, 99 N- Y. 29; Austin v. Davis, i.S Ind. 472, ^S Am St. ep. 4. 6. Should contain names or description of the part.es. Lmcoln v hm Preserving Company, 132 Mass. 129; Grafton v. Cummings, 99 U. S. ^,^. Ross V. Allen, 45 K..n. 231 ; Lee v. Cherry, 85 lenn 707, 4 A-n. S • Rep. 800, the subject-n.atter of the contract. May v. Wood, 134 Mass ,27, McElroy v. Hush. 35 >nch. -497, the price. Ide v. Staunton 15 Vt 685, 40 Am. Dec. 698; O'Neil v. Crane, 67 Mo. 250 As to tune and olace of delivery, see Smith v. Shell, 82 Mo. 215, 52 Am. Rep. 365. orandum is that the name of es t 't appear on the face of 426 MODES OF OBTAINING TITLE TO PERSONAL PROPEUTI § 79. Same— At what time may memorandum be s BIRD V. MUNROE. [66 Me. 337; 22 Am. Ren. 327.] Supreme yudicial Court of Maine, i8~y. Peters, J. — On March 3, 1S74, at Rockland, in this the defendant contracted verbally with the plaintiffs fc purchase of a quantity of ice, to be delivered (by immc shipments), to the defendant in New Yorii. On Marc 1S7)., or thereabouts, the defendant, by his want ot reac to receive a portion of the xe as he had agreed to, tempo prevented the plaintiffs froi.i performing the contract on part according to the preparations made by them for the pose. On March 24, 1S74, the parties, then in New Yorl their previous verbal contract into writing, antedating it original contract made at Rockland on March 3, 1S74. C same dav (March 24), by consent of the defendant, the pla sold the same ice to another party, reserving their claim aj the defendant for the damages sustained by them by the b of the :ontract by .le defendant on March 10 or aboui time. This action was commenced on April 11, 1S74, c ing on the contraci: as made on March 2, and declarin damages sustained by the breach of contract on March i thereabouts, and prior to March 24, 1874. Several obje- are set u^ against the plaintiffs' right to recover. The first objection is, that in some respects the al!egati< the writ and the Written proof do not concur. But we this point, as an imperfccHm, ni the v -it may, either wi without terms, be corrected I'V amendment hereafter. Then it is claimed for the defendant that, as matter of the parv -s intended to make a new and original contraci March 24, by their writing made on that day and arte March 2, and that it was not their purpose thereby tc expression and etBcacy to any unwrittjn contract made by before that time. But we think a jury would be well wan in coming to a different conclusion. Undoubtedly thei circumstances tending to throw some doubt upon the ide Oi : TO I'EllSONAL PROPERTY. nay memoranduin be made. UN ROE. Vm. Ren. 327.] •tri of Maine, /5~7. 4, at Rockland, in this state, Uy with the plaintiffs for the be delivered (by immediatfe New York. On March 10, nt, by his want ot readiness he had agreed to, temporarily forming the contract on their IS made by them for the pur- jarties, then in New York, put ;o writing, antedating it as an nd on March 2, 1S74. On the t of the defendant, the plaintiffs y, reserving their claim against stained by them by the breach on March 10 or about that :ed on April 11, 1S74, count- March 2, and declaring for of contract on March 10, or 24, 1874. Several objections •ight to recover, ome respects the allegations in o not concur. But we pass the V it may, either with or menciment hereafter, iidant that, as matter of fact, new and original contract as of e on that day and aiUedated their purpose thereby to give writtjn contract made by them a jury would be well warranted ision. Undoubtedly there are ome doubt upon the idea that BIRD V. MINROE. 427 ;| both parties understood that a contract was fully entered into on March 2, 1S74, but that doubt is much more than overcome when all the written and oral evidence is considered togetlier. We think the writing made on the twenty-fourth of March, with the explanations as to its origin, is to be considered pre- cisely as if the parties on that day had signed a paper dated of that date, certifying and admitting that they had on the second day of March made a verbal contract and stating in exact writ- ten terms just what such verbal contract was. Parol evidence is proper to show the situation of the parties and the circum- stances under which the contract was made. It explains Init does not alter the terms of the contract. The defendant him- self invokes it to show that, according to his view, the paper bears an erroneous date. Such evidence merely discloses in this case such facts as are part of the res gestae. IJenjamin on Sales, sec. 213; Stoops v. Smith, 100 Mass. 63, 66, and cases there cited. Then, the defendant next contends that, even .f the writing signed by the parties was intended by them to operate retro- actively as of the first named date, as a matter of law, it can not be permitted to have that effect and meet the requirements of the statute of frauds. The position of the defendant is, that all which took place between the parties belore the twenty- fourth of March was of the nature of negotiation and proposi- tion only ; and that there was no valid contract, such as is called for by the statute of frauds, before that day ; and that the action is not maintainable, because the breach of contract is alleged to have occurred before that time. The plaintiffs, on the other hand, contend that the real contract was made verbally on the second of March, and that the written instrument is sufficient proof to make the verbal contract a valid one as of that date (March 2), although the written proof was not made out until twenty-two days after that time. Was the valid contract, therefore, made ^n March 2 or March 24 ? The point raised is, whether, in vi w of the statute of frauds, the writing in this r ise shall be considered as constituting the contract itself or at any rate any substantial portion of it, or whether it may be regarded as merely the necessary legal evidence by means of which the prior unwritten contract may be proved. In other words, is the writing the contract, or only evidence of it; we incline to the letter view. 42S MODES OF ORTAIMNG THI.1C TO PERSONAL I'UOPEllTV. The peculiar wordini; of the statute presents a strong arg ment for such a determination. The section reads: "^ contract for the sale of any jjjoods, wares, or merchandise, f thirty dollars or more, siiall be valid, unless the purchas accep;s and receives part of the -oods, or gives something earnest to bind the bargain, or in part payment thereof, or sor note or memorandum thereof is made and signed by the pa to be charged thereby, or his agent." In the first placet statute does not go to all contracts of sale, but only to the where the price is over a certain sum. Then, the requirem( of ':1c statute is in the alternative. The contract need not evidenced bv writing at all, provided "the purchaser acce] and receives a part of the goods, or gives something in earn^ to bind the bargain or in part payment thereof." If any c of these circumstances will as effectually perfect the sale as writing would, it is not easily seen how the writing can actuii constit^ute the contract, merely because a writing happens exist. It could not with any correctness be said that anyth given in earnest to bind a bargain was a substantial part of bargain itself, or anything more than a particular mode proof. Then, it is not the contract that is required to be writing, but onlv "some note or memorandum thereof." T language supposes that the verbal bargain may be first ma and a memorandum of it given afterward. It also implies 1 no set and formal agreement is called for. Chancellor K savs "the instrument is liberally construed without regard forms." The briefest possible forms of a bargain have b deemed sufficient in many cases. Certain important elem^ of a completed contract may be omitted altogether. instance, in this state, the consideration for the promise is required to be expressed in writing. GiUighan v. Boardn 29 Me. 79. Again, it is provided that the note or memo dum is suflkient, if signed only by the person sought t( charged. One party may be held thereby and the other be. *There may be a mutuality of contract but not of evid( or of remedy. Still, if the writing is to be regarded ii cases as constituting the contract, in many cases there woul but one contracting party. Another idea gives weight to the argument for the pos advocated by the plaintiffs; and that is, that such a consi ) PERSONAL I'UOPEKTV. to presents a strong argu- Thc section reads: "No ^ares, or merchandise, for alid, unless the purchaser ds, or gives something in rt payment thereof, or some le and signed by the party It." In the first phice the of sale, but only to those n. Then, the requirement The contract need not be ;d "the purchaser accepts fives something in earnest nent thereof." If anyone ually perfect the sale as a how the writing can actually :ause a writing happens to tness be said that anything vas a substantial part of the than a particular mode of t that is required to be in jmorandum thereof." This )argain may be first made, irward. It also implies that ailed for. Chancellor Kent :onstrued without regard to ms of a bargain have been Certain important elements 2 omitted altogether. For ation for the promise is not g. Gillighan v. Boardman, that the note or memoran- by the person sought to be Id thereby and the other not contract but not of evidence nw is to be regarded in all in many cases there would be le argument for the position hat is, that such a construc- BlllI) V. MUNKOi:. 429 tion of the statute upholds contracts according to the intention of parties thereto, while it, at the same time, fully suliservcs all the purposes for which the statute was created. It must be borne in mind that verbal bargains for the sale of personal property arc good at common law. Nor are they made illegal by the stat.ite. Parties can execute them if they mutually please to uo so. The object of the statute is to prevent perjury and fraud. Of course, perjury and fraud can not be wholly prevented; but, as said by Bigclow, J. (Marsh v. Ilydo, 3 Grav. ?3i)i "'"^ memorandum in writing will be as effectual agai'nst'perjury, althougli signed subsequently to the making of a^vcrbal contract, as if it had been executed at the moment when the parties consummated their agreement by word of mouth." We think it would be more so. A person would be likely to commit himself in writing with more care and caution after time to take a second thought. The locus pen- jtentiiu remains to him. By no means are we to be understood as saying that all writ- ten instruments will satisfy the statute, by having the effect to make the contracts described in them valid from their first verbal inception. That must depend upon circumstances. In many, and perhaps, most instances, such a version of the transaction would not agree with t.ie actual understanding of tlie parties. In many cases, undoubtedly, the written instrument is perse tlie contract of the parties. In many cases, as for instance, like the antedating of the deed in Egery v. Woodard, 36 Me. 45, cited by the defendant, the contract (by deed), could not take effect before delivery; the law forbids it. So a will made by parol is absolutely void. But all these classes of cases differ from the case before us. A distinction is attempted to be set up between the meaning to be given to R. S., c. iii, sec. 4, where it is provided that no unwritten contract for the sale of goods "shall be valid," and that to be given to the several preceding sections wliere it provided that up. i. certain other kinds of unwritten contracts "no action shall be maintained;" the position taken being that in the former case the contract is void, and in the other cases only voidable perhaps, or not enforceable by suit at law. But the distinction is without any essential difference, and is now so regarded by authors generally and in most of the decided 430 MU1)F,S OF Om-AINING TITLE TO PERSONAL PHOPKi;TY, cases. All the sections referred to rest upon precisely the s;i policy. Exactly the same object is aimed at in all. The fcrencc of phraseology in the different sections of the orig Englisii statute, of which ours is a substantial copy, may ] haps be accounted for by the fact, as is generally concec that the authorship of the statute war- the work of diffe hands. Although our statute (R. S. 1S71, sec. 4) uses words "no contr.ict shall be valid," our previous statutes i the phrase '-shall be allowed to be good ;" and the change made when the statutes were revised in 1S57, without any islative intent to make an alteration in the sense of the sect (K. S. 1S41, c. 136, sec. 4.) The two sets of phrases v undoubtedly deemed to be equivalent expressions. The w of the original English section are, '-shall not be allowed t good," meaning, it is said, not good for the purpose of sust ing an action thereon without written proof. Browne, Frauds, sees. 115, 136, and notes to the sections; Benjanr Sales, sec. 114; Townsend v. Hargraves, iiS Mass. 325, cases there cited. There are few decisions that bear directly upon the pre point which this case presents to us. From the natur things, a state of facts involving the question would sel exist. But we regard the case of Townsend v. Hargrt above cited, as representing the principle very pointedly, was there held that the statute of frauds affects the remedy and not the validity of the contract; and that where there been a completed oral contract of sale of goods, the accept and receipt of part of the goods by the purchaser takes the out of the statute, although such acceptance and receipt after the rest of the goods are destroyed by fire while in hands of the seller or his agent. The date of the agreei rather than the date of the part acceptance was treated as time when the contract was made ; and the risk of the lo the goods was cast upon the buyer. Vincent v. Germond Johns. 2S3, is to the same effect. We are not aware of case where the question has been directly adjudicated adve to these cases. Webster v. Zielly, 53 Barb. (N. Y.) 48 the argument of the court, directly admits the same princ The case of Leather Cloth Co. v. Hieronimus, L. R., i B. 140, seems also to be an authority directly in point. Tb rO rKRSONAI. IMlOriCKTY rest upon precisely the same 1 aimed at in all. The dif- ent sections of the original substantial copy, may per- t, as is generally conceded, war- the work of different , S. 1S71, sec. 4) uses the " our previous statutes used good j" and the cliange was Ed in 1S57, without any leg- n in the sense of the section, e two sets of phrases were ent expressions. The words , '-shall not be allowed to be od for the purpose of sustain- vritten proof. Browne, St. to the sections; Benjamin's rgraves, 118 Mass. 325, and ar directly upon the precise to us. From the nature of f the question would seldom of Townsend v. Hargraves, principle very pointedly. It frauds affects the remedy only t; and that where there has sale of goods, the acceptance y the purchaser takes the case \ acceptance and receipt are istroyed by fire while in the The date of the agreement :ceptance was treated as the ; and the risk of the loss of r. Vincent v. Germond, 1 1 t. We ave not aware of any directly adjudicated adversely y, 53 Barb. (N. Y.) 482, in y admits the same principle. . Hieronimus, L. R., 10 Q. ity directly in point. Thomp- BIKD V. MUMIOE. 43' son V. Alger, 12 Met. 428, 435, and Marsh v. Hyde, 3 Gray, 331, relied on by defendant, do not, in their results, oppose the idea of the above cases, although there may be some expres- sion in them inconsistent therewith. Altogether another qucs- tion was before the court in the latter cases. But there are a great many cases where, in construing the statute of frauds, the force and effect of the decisions go to sus- tain the view we take of this question, by the very strongest implication. Such as : that the statute does not apply where the contract has been executed on both sides; Bucknam v. Nash, 13 Maine, 474;— that no person can take advantage of the statute but the parties to the contract, and their privies ; Cowan v. Adams, 10 Maine, 374;— that the memorandum may be made by a broker; Hinckley v. Arey, 37 Maine, 362 ; or by an auctioneer; Cleaves v. Foss, 4 Maine i ;— that a sale of personal property is valid when there has been a delivery and acceptance of part, although the part be accepted several hours after the sale; Davis v. Moore, 13 Maine, 424; or several days after; Bush v. Holmes, 53 Maine, 417; or ever so long after; Browne, St. Frauds, sec. 337, and cases there noted;— that a creditor, receiving payments from his debtor without any direction as to their application, may apply them to a debt on which the statute of frauds does not allow an action to be maintained; Haynes v. Nice, 100 Mass. 327 ;— that a contract made in France, and ralid there without a writing, could not be enforced in England without one, upon the ground that the statute related to the mode of procedure and not to the validity of the contract; Leroux v. Brown, i3 C. B. Soi ; but this case has been questioned somewhat ;— that a witness may be guilty of perjury who falsely swears to a fact which may not be com- petent evidence by the statute of frauds, but which becomes material because not objected to by the party against whom it was offered and received :_ Howard v. Sexton, 4 Coms. 157; — that an agent who signs a memorandum need not have his authority at the time the contract is entered into, if his act is orally ratified afterward; Maclean v. Dunn, 4 Bing. 722;— that the identical agreement need not be signed, and that it is suf- ficient if it is acknowledged by any other instrument duly signed ; Gale V. Nixon, 6 Cow. 445;— that the recognition of the con- tract maybe contained in a letter; or in several letters, if so 43- MODES OF OUT.MNMNG TITI.F, TO PERSONAL PllOPERTY. connected by "written links" as to form sufficient evidence ( the contract;— that tlie letters may be addressed to a third pe son; Hrowne, St. Frauds, sec. 346; Fyson v.Kitton, 30 E. L. Eq. 374; Gibson v. Holland, L. R. i C. P. i ;— that an ap;ei may write his own name instead of that of his principal intending to bind his principal by it; Williams v. Bacon, Gray, 3S7, 393, and citations there;— that a proposal in wri injr, if accepted by the other party by parol, is a snllicie memorandum; Reuss v. Picksley, L. R. i Exc. 342;— th where one party is bound by a note or memorandum the oth party may be bound if he admits the wri-in^^ by anolhcr wr ing by him subsequently signed ; Dobell v. Hutchinson, 3 .( 8c E, 35t; — that the written contract may be rescinded 1 parol, although many decisions are opposed to this propositioi Richardson V. Cooper, 25 Maine, 450; — that equity will intc fere to prevent a party making the statute an instrument fraud; Ryan v. Dox, 34 N. Y. 307; Hassam v. Barrett, i Mass, 356, 25S;— thata contract verbally made may be mai tained for certain purposes, notwithstanding the statute ; that person who pays his money under it can not recover it back the other side is willing to perform; and he can recover if p< formance is refused : Chapman v. Rich, 63 Maine, 5S8, ai cases cited ; — that a respondent in equity waives the statute a; defense unless set up in plea or answer; Adams v. Patrick, Vt. 516; — that it must be specially pleaded in an action at lai Middlesex Co. v. Osgood, 4 Gray, 447; Lawrence v. Chai 54 Maine, 196; — that the defendant may waive the protecti of the statute ar:l admit verbal evidence and become bound it; Browne, St. Frauds, sec. 135. It may be remarked, however, that in most courts defendant may avail himself of a defense of the statute uni the general issue. The different rule in Massachusetts s Maine grew out of the practice act in the one state and in 1 statute requiring the filing of specifications in tie other. It is clear from the foregoing cases, as well as from m: more that might be cited, that the statute does not forbid pa contracts, but only precludes the bringing of actions to enfo them. As said in Thornton v. Kempster, 5 Taunt. 7S6, 7: "The statute of frauds throws a difficulty in the way of the t dence." In a case already cited, Jervis, C. J., said : "1 PERSONAL PIIOPERTY. form sufficient evidence of e addressed to a tiiird per- 'yson v.Kitton, 30 E. L. Sc I C. P. I ; — that an ap;ent f tliat of his principal if it; Williams v. liacon, 2 — that a proposal in writ- by parol, is a sufficient L. R. I Exc. 342;— that or memorandum the other le wri'in^ by another writ- obeli V. Hutchinson, 3 A. act may be rescinded by pposed to this proposition ; ^o; — that equity will inter- statute an instrument of 7; Hassam v. Barrett, 115 rbally made may be main- standing the statute; that a can not recover it back if and he can recover if per- Rich, 63 Maine, 5SS, and |uity waives the statute as a wer; Adams v. Patrick, 30 pleaded in an action at law; , 447 ; Lawrence v. Chase, t may waive the protection ence and become bound by jr, that in most courts a ilefense of the statute under rule in Massachusetts and in the one state and in the cations in tie other, ases, as well as from many tatute docs not forbid paid ringing of actions to enforce empster, 5 Taunt. 7S6, 7SS, ficulty in the way of the evi- , Jervis, C. J., said: "The Binn V. MUNHOK. ■133 effect of the section is not to avoid the contract, but to bar the remedy upon it, unless there be writing." See analogous case of McCl'.lan v. McClellan, 65 Maine, 300. liut the defendant contends that this course of reasoning would make a memorandum sufficient if made after action brought, and that the authorities do not agree to that proposi- tion. There has been some judicial inclination to favor tlie doctrine to that extent even, and there may be some logic in it. Still the current of decision requires that the writing must exist before action brought. And the reason for the requirement does not militate against the idea that a memorandum is only evidence of the contract. There is no actionable contract before memorandum obtained. The contract can not be sued until it has been legally verified by writing; until then there is no cause of action, although there is a contract. The writing is a condition precedent to the right to sue. VVillcs, J., per- haps correctly describes it in Gibson v. Holland, supra, when he says, "the memorandum is in some way to stand in the place of a contract." He adds: "The courts have considered the intention of the legislature to be of a mixed character ; to prevent persons from having actions brought against them so long as no written evidence was existing when the action was instituted." Browne, St. Frauds, sec. 338. Benjamin's Sales, sec. 159. Fricker V. Thomlinson, i Man. & Gr. 773. Brad- ford V. Spyker, 33 Ala. 134; Bill v. Bamcnt, 9 M. & W. 36. Philbrookv. Belknap, 6 Vt. 3S3. In the last case it is said, "strictly speaking, the statute does not make the contract void, except for the purpose of sustaining an action upon it, to enforce it." Action to stand for trial. CoNSULT-William v. Bacon, 2 Gray, 387; lloughtaling v. Bali, 20 Mo. 563. 28 • x J- '- 434 MOUKS OF Dili AIMNG TITI.F. TO IMC ItSONAI. mOPEIlTY. § 80. Same-Need not be delivered-How signed. DRURY V. YOING. [5H NKl. 5^6; 42 Atn. Rep. ,-?.!3.] Ccfii-f of Appcii/s of MiiryhiinL 1882. Action by William II. II. Younjj against Edward T. Drury William II. James, Jr., and .Samuel M. Rankin for breach contract to deliver goods to plaintiff. From a judgment fo plamtiff, defendants appealed. .SroNK, J.— One of the questions presented for our considei ation in this case is, whether the "note or memorandum i writing" required by the seventeenth section of the statute o frauds, must be delivered to the other party thereto. It is ap parcnt'from the evidence that the note or memorandum i writing relied on in this case, was made by the bookkeeper c the appellants by the direction of one of them, and by the booL keeper placed in their safe, among other papers, where remained from the twenty-seventh of August, iSSi, the day which it was written, until it was produced in court, at tl: trial of the case in February, iSS::. There is no evidence thi this note was ever seen by the appellee, or even its existenc known to him until the trial; and it certainly never was deli eredtohim, or went out of the possession of the appellant: until produced in court. It is strongly insisted by the appe lants that the statute is not gratified without a delivery of tli note or memorandum. It must be borne in mind that tl statute of frauds was not enacted for cases where the parti have signed a written contract; for in these cases, the commc law affords quite a suthcient guaranty against frauds and p« juries, as is provided by the statute. The intent of the statu was to prevent the enforcement of parol contracts, unless t defendant could be shown to have executed the alleged contra by partial performance, or unless his signature to some writti note or memorandum of the bargain— not to the bargain its( — could be shown. The existence of the note or memorandum presupposes antecedent contract by parol, of which the writing is a note memorandum Benjamin on Sales, sec. 208. 'EUSONAL I'ROI'EIITY. Ditriiv y. ^()^•^(; 4.v= sred— How signed. NG. u-y/ninL 1882. igainst Edward T. Diury, J. Rankin for breach of From a jud<,nncnt for resented for our con?idcr- iiotc or memorandum in section of the statute of ■ party thereto. It is ap- iiote or memoranihim in ide by tiie bookiveeper of of them, and by the book- j other papers, where it Ausjust, iSSi, the day on roduced in court, at the There is no evidence that ee, or even its existence :ertainly never was deliv- session of the appellants, ;ly insisted by the appel- ^vithout a delivery of this borne in mind that the r cases where the parties n these cases, the common ty against frauds and per- The intent of the statute larol contracts, unless the ccuted the allecjed contract 5 signature to some written — not to the bargain itself morandum presupposes an ich the writing is a note or sec. 20S. Now the statute itself is entirely silt-nt on the (|ucstion of the delivery of the note or memoraudnm of the bargain, ami its literal reciuireiULMits are fultilled bv the existence of the note or nuiniiraudum of the liar^jain. signed by the |)arty to be chai'^ed thereby. 'I'lie statute itself deals exclusively with the existciKC and not with the custody of the paper. If the nondeli\eiy of the note dues not violate the letter of the statute, would it violate its spirit and be liable to any of the mischiefs which the statute was made to prevent? The statute \>as passed to prevent fraud practiced through the instrumentality of perjury. It was passed to prevent the defendant from suffering loss, under the parol testimony of either a perjured or mistaken witness, speaking Mf sale itself were insiitVicient. We have then a sullicient note or memorandum of a l)ar'rair provided the jury were satislicd that an antecedent parol hai jrain, substantially agreeing' with the said note or memoranduir had heen made between plaintiff and defendants. Whether such antecedent parol barny the tlrst exception was whetlier the court below were warranted in ordering tlie production of tlie paper mentioned therein, against the protest and objection of the defendants. iUit they did produce tlie paper. It may l)e that the defendants are right in their hypothesis, and that the court below were in error in onKring Its produc- tion, and that it has properly no place in this record. Uut it is ill this record, and we have no power toeliininate it therefroiii. The plaintiff has already receivi'd the beiietlt from the pro- duction of the jiaper, and we know of no way in which we can now deprive him of that benefit. We would be unable, by a reversal of this judgment and send- ing the case back for trial, to place the defendants in the same situation that thev were l)efore they produced the paper. I>y their own act thev have rendereil tliat impossible. For the pur- ])ose of this ease, the paper is no longer a private paper, but is in the possession of the court and jury, and has been duly delivered to tiiem by the defendants, and in their possession, for all the purposes of this suit, it must now remain. It was at tlie option of the defendants to have refused to produce the paper at the trial, and take the risk of a judgment by default, if the court below should have determined to render one against them, and upon an appeal from such judgment the question would have been properly before us. Judgment alhrmed. That meiiioraiulum need not be delivered. Conhclt— Feabody v. Spyers, sON. Y. 220; Argus'Co. v. Albany, 55 N. Y. 495, 14 Am. Rep. ::<)6; Johnson v. Trinity Church, 11 Allen, 123; Kleeman v. Collins, 9 Jiiish. 417; Moore v. Mountcastle, 61 Mo. 424. As to mode of signing see: Mci:iroy v. Seevy, 61 Md. 3S9, 4S Am. Rep. no; Ivory v. Murphy, ,Vi Mo. 534; Boardman v. Spooner, 13 Allen, 353; Brayley v. Kelly, 25 Minn. 160; Sanborn v. Flagler, 9 Allen, 473; Merchants Bk. v. Spicer, 6 Wend. 443; Brown v. Butchers' Bk., 6 Hill, 443, 41 Am. Dec. 755; Augur V. Couture, 6S Me. 427; }lawkins v. Chase, 19 Pick. 502; James v. Patten, 6 N. Y. 9, 55 Am. Dec. 276. ■ 440 MOD.:i:S OF OBTAINING TITLE TO I'EltSONAI- PUOI'ERT: § 81. San:: e— Oral evidence to connect several docurc OLIVER V. HUNTING. [44 Ch. Div. 205.] English High Court, Chancery Division, i8go. In August, iSSS, Emma Oliver, a married woman, posi o£ considerable separate estate, negotiated with a Mr. Hi for the purchase of a freehold property' known as tho F Manor House estate. Eventually she agreed to pu. chase two thousand, three huiulretl and seventy-five pounds, a the seventh of September, 188S, he signed the following ment: "Memorandum of terms of agreement between Mr. Hi and Mrs. Oliver: Price two thousand, three hundre sev<- -ty-ilve pounds. Vendor to make good title. Pnr to pay for her own conveyance. Fixtures included in pur Purchase to b."^ settled as soon as possible. Possess twenty-fifth of September. Deposit to be paid on the t( On the twelfth of September, iSSS, Mr. Hunting ,vro sent a letter to Mrs. Oliver in the following words: "I beg to acknowledge receipt of check value three hi and seventy-five pounds on account of the purchase mor the Fletton Manor House estate." Mr. Hunting having refused to complete, Mrs, Olive mencfd this action against him, claiming specific perfor of the contract of the seventh of September, 1SS8, and al in her statement of claim that in pursuance of the said C( she, on the tenth of September, 1SS8, paid to Mr. Hunti sum of three hundred and seventy-five pounds as, a depo in part payment of the said purchase-money, and subi that the memorandum of th-; seventh and the letter twelfth of September, 1SS8, formed a valid contract sufficioit memorandum within the statute of frauds. Mr. Hunting, by his statement of defense, did not adr of the allegations in tl; statement of chum, and relied statute of frauds. Issue was joined. This was the trial action. Hi WM i TO l'Ell.SO\AL PROPERTV. t connect several documents. HUNTING. iv. 205.] '.n;/cciy Division, i8go. ;r, a married woman, possessed legotiated with a Mr. Hunting ropcrty' known as tlio Flatten y she agreed ^o pui chase it for I seventy-Pve pounds, and on he sisncd the following docu- rcement between Mr. Hunting thousand, three hundred and > make good title. Purchaser Fixtures included in purchase, m as possible. Possession o-i 3Dsit to be paid on the tenth." iSSS, Mr. Hunting .vrote and e following words : t of check value three hundred unt of the purchase money for complete, Mrs. Oliver corn- claiming specific performance September, 1SS8, and alleging 1 pursuance of the said contract iSSS, paid to Mr. Hunting the ty-five pounds as a deposit and rchase-money, and submitting seventh and the letter of the formed a valid contract and a he statute of frauds, it of defense, did not admit any ;nt of chum, and relied on the ined. This was the trial of the OLIVER V. HUNTING. 441 Mrs. Oliver in her evidence deposed that she sent the check of three hundred and seventy-tive pounds, mentioned in the letter of the twelfth of September, on account of the purchase- money of the Fletton Manor House estate. It was part of the two thousand, three hundred and seventy-five pounds. No other money was payable by her to the defendant. The three hundred and seventy-five pounds was the balance that Mr. Hunting was to receive, because the two thousand pounds was to be paid over to a mortgagee of the property. Her solicitor, Mr. Law, was going to find the two thousand pounds for her. Kekkwich, J. — The elementary proposition about which there is no doubt is this — the memorandum to be signed by the party sought to be charged, so as to bring a particular case within the statute of frauds, need not be on one piece of paper, nor need it be a complete document, signed by the party at one and the same time. It may be contained in two or more pieces of paper, but they must be so connectc.l that you can read them together, so as to form one memorandum of the contract between the parties. Directly you get beyond that, you get into difliculty. One can illustrate thac in a simple manner. An intending purchaser accepts an offer made by a proposing vendor thus: "In reply to your letter of tlie fourteenth instant." Can one annex to that reply the letter of the four- teenth instant.'' Surely one can not, without inquirinji; what letter it is; unless the purchaser has, with unusual prudence, completed the reference by saying, "In reply to your letter of the fourteenth insta.)t, a copy of which is on the other side." In the absence of any such complete evidence as that, one iiniit inquire what the letter of the fourteenth instant was, because lion constat, it may have been a reference to any one of half a dozen different letters; and so, from that very simple illustra- tion, one can go through, a large variety of mor-- complex ones. It is not for me to say that the old aile was better or worse than the present rule; but that it wis a different rule, notwith- standing the criticisms in the cases which Mr. Neville has given me, 1 have no doubt. I take the old rule from the orig- inal edition of Lord Blackburn, on tlie contract of sale, which is cited I have not the original work before me — by Williams, J., in Railway Co. v. Peek, E. B. cS: E. loor. where, after HRS^ 442 MODES OF OnTAlMNG TITLE TO PEUSONAL PROPERTV. referring to Ilinde v. Whitchouse, 7 East, 55S, and Kenvvorth; V. Schofield, 3 B. &. C. 945, he says: "The principle o these cases seem to me to be well stated in the same work b; my Brother Blackburn, as follows: "If the contents of th signed paper themselves make reference to the others so as t show by internal evidence that the papers refer to each othei they may be all taken together as one memorandum in wril ing' " (as in the case which I have mentioned of a letter refei ring to a previous letter, of which the copy is annexed); "bi if it is necessary, in order to connect them, to give evidence c the intention of the parties that they should be connectet shown by circumstances not apparent on the face of the wri ings, the memorandum is not all in writing, for it consis partly of the contents of the writings and partly of ti u expre sion of an intention to unite them, and thai ]ii\.ssion is m in writing." The old case of Boydell v. Drummond, 11 Eas 142, and some other cases, might be consistent with that rule but certainly of late a different rule has bee" introduced, ar it is a rule, to say the least, consistent with the convenience ( mankind, because if you were to exclude parol evidence I explain such a doubtful reference as "the letter of the fourteen! instant," or it might be simply "your letter," the rei^uli ir.igl in a large number of cases be gross injustice. Nov 1 ^ :e to be quite settled that in a case of that kind you may gi> parol evidence to show what the document referred to was. take it that you may go further than that, and that if you find reference to something, which may be a conversation, or mi be a written document, you may give evidence to show wheth it was a conversation or a written document; and, havii proved that it was a written document, you may put that wr ten document in evidence, and so connect it with the o already admitted or proved. So far there is no difficult That was applied in the case of Ridgway v. Wharton, 6 H. C. 23S, where the question was on the meaning of instructio which did not by any means necessarilv pomt to a written doc ment : but later the cases have gone further than that, and seems to me that Long v. Millar, 4 C. P. D. 450 followed Field, J., in Cave v. Hastings, 7 Q. B. D. 125, does establi a very much larger series of exceptions. In Long v. Millar profess myself rather embarrassed by the juctginent of Thesig PERSONAL PROPERTY. East, 55S, and Kenworthy lays: "The principle of ted in the same work by "If the contents of the ;nce to the others so as to lapcrs refer to each other, nc memorandum in urit- lentioned of a letter refei- le copy is annexed); "but them, to give evidence ol ley should be connected, nt on the face of the writ- in writing, for it consists 3 and partly of ' expre^- and that pn .ssion is not ;11 V. Drummond, 11 East, consistent with that rule; has bee- introduced, and It with the convenience ol ;xclude parol evidence to 'the letter of the fourteenth r letter," the re viU ir.ight 1 injustice. No v 1 f^iike it f that kind you may give :ument referred to was. I that, and that if you find a be a conversation, or may e evidence to show whether 1 document; and, having ;nt, you may put that writ- connect it with the one far there is no difficulty. Igway v. Wharton, 6 H. L. the moaning of instructions irilv pomt to a written docu- le further than that, and it C. P. D. 450 followed by . B. D. 125, does establish ons. In Long v. Millar, I y the juugment of Thesjger^ r OLIVER V. mNTING. 445 L. J. that is to say, I am unable quite to understand what he means by the passages on page 456, which seem to me rather iuconsistont; but seeing that 1 have the judgments of liramwcU and Baggalla . L. T- J-, without the slightest doubt or embar- rassment, and thr . rhesiger, L. J., concurred in their judg- ment, I think I may put any difficulty of that kind aside. Bramwell, L. J., gave a judgment which, beyond its reference to the particular case, is exceedingly useful as illustrating this branch of law; because he gives an illustration which seems to me to go to the root of the mattor. The illustration he gives is this (Long V. Millar, 4 C. P. D. 454): "Suppose that A. writes to B., saying that he will give one thousand pounds for B.'s estate, and at the same time states the terms in detail, and suppose that B. simply writes back in return, 'I accept your offer.' In that case there may be an identification of the doc- uments by parol evidence, and it may be shown that the offer alluded to by B., is that made by A., without infringing ihe stat- ute of frauds, section 4, which requires a note or memorandum in writing." If that is sound, which I take it to be, according to other cases, and according to the convictions of judges in older cases which are introduced into the old law, it is difticult, perhaps, to say where parol evidence is to stop ; but sulistan- tiall) it never stops short of this, that wherever parol evidence is required to connect two written documents together, then that parol evidence is admissible. You are entitled to rely upon a written document, which requires explanation. Per- haps the real principle upon which that is based is, that you are always entitled in regarding the coi .^ruction and meaning of a written document to inquire into the circumstances under which it was written, not in order to find an interpretation by the writer of the language, but to ascertain from the surround- ing facts and circumstances with reference to what, and with what intent, it must hav.e been written. I think myself that must be the principle on which parol evidence of this kind is admitted. Turning to the case before me, I find a etter of the twelfth of September, 188S, written by the defendant to Mrs. Oliver; and in that he says: "I beg to acknowledge receipt of check, value three hundred and seventy-five pounds, on account of the purchase-money for the Fletton Manor House 444 MODES OK OBTAINING TITLE TO PERSONAL PROPERTY. estate, for which I thank you." I have two things here p fcctly clear, that there is a property called Fletton Mai House estate, which constitutes the subject of a purchase, ai therefore, the subject of a sale. I have also that three hundi and seventy-five pounds is part of the purchase-money for t house ; but, beyond that, I have no terras of a contract. I i entitled to consider the circumstances under which the let was written, in order to j^ive any meaning that I properly ( to it — not to add terms to it, but to find out whut the mean necessarily must be, having regard to the facts and ciicu stat'.ces — and, having got the evidence which I have in t case, the conclusion is inevitable that it refers to a previi memorandum of terms of agreement under which M Oliver becomes the purchaser of this particular property the price of two thousand, three hundred and seventy-f pounds, on account of which the check for three hundred i seventy-five pounds was sent. Having got that evidence having got the connection between the two documents, I hi then enough to enable me to read the two documents togetb and, reading them together, I have a distinct memorandum contract, specifying all the terms, the second one supply what the first one omitted to give, namely, singularly enou: the property which was intended to be purchased and sc That being so, the objection that there is no memorand w ithin the statute of frauds fails. I have not referred to the late case of Studds v. Watson, Ch. D. 305, before Mr. Justice North, because I am not qi sure how far that learned judge intended to go. If I am ri in my view of his judgment, that he only allowed the pr agreement to be proved to see whether it connected the I written documents, and then, having got it in evidence, fot that it did, and so was able to connect the two documents- that is the right view, which I believe it to be, of what intended — then it really follows Long v. Millar, 4 C. P. 450, and Cave v. Hastings, 7 Q. B. D. 125, to both of wfc he referred in his judgment. Under these circumstances, I think the plaintiff is entitlec judgment for specific performance, and, of course, to the c< of the action. O PERSONAL PROPERTY. HATCH V. OH. COMPANY, 445 I have two things here per- ;rty called Fletton Manor subject of a purchase, and, lave also that three hundred he purchase-money for that ter>ns of a contract. I am ces under which the letter leaning that I properly can find out what the meaning d to the facts and ciicum- ■nce which I have in this that it refers to a previous .MTient under which Mrs. this particular property for hundred and seventy-five leck for three hundred and iving got that evidence in, the two documents, I have lie two documents together, a distinct memorandum of the second one supplying namely, singularly enough, to be purchased and sold. there is no memorandum ;e of Studds v. Watson, 28 ith, because I am not quite sndtd to go. If I am right he only allowed the parol lether it connected the two g got it in evidence, found lect the two documents — if elieve it to be, of what he )ng V. Millar, 4 C. P. D. B. D. 125, to both of which ik the plaintiff is entitled to and, of course, to the costs U Coxsvi.T— Thayer V. Luce, 22 Ohio St. 62; Ross v. Allen, 45 K.an. 62; Frank v. Miller, 38 Md. 4()i ; Tallm.".n v. Frann.lin, 14 N. V. 5S4; Hrown v. Whipple, 58 N. H. J29; Johnson v. Huck, 31; N. J. (L,) 338, 10 Am. Rep. 743; Beckwith v. Talbot, 95 U. S. 2S9; .Sanborn v. Fl.iijler, 9 Allen, 474; Salem Falls Mfg. Co. v. Goddard, 14 How. 474; Bojdell V. Drummond, 11 East. 142. J. T/ie Transfer of Title. § 02. Intention of parties the main test. HATCH V. OIL COMPANY. [100 U. S. 124.] Supreme Court of the United States, iS'i?. Mr, Ji'STicE Clifford. — Contracts for the purchase and s;ile of chattels, if complete and unconditional and not witlim the statute of frauds, are sufficient, as between the parties, to vest the property in the purchaser, even without delivery ; the rule being that such a contract constitutes a sale of t!ie thing, and that its effect is, if not prejudicial to creditors, to transfer the property to the purchaser against every person not holding the same under a iona fde title for a valuable consideration without notice. The Sarah Ann, 2 .Snmn. 211; Gibson v. Stevens, 8 How. 3S4, 399; 2 Kent, Com. [12 Ed.] 493; Leonard ' . Davis, i Black, 476-483. Nine hundred and forty-four thousand white-oak barrel- staves, of the value of $17,500, were attached by the defend- ant as sheriff of the county, under certain processes mesne and final, which he held for service against the manufacturers of the staves, to secure certain debts which they owed to their creditors. No irregularity in the proceedings is suggested, but the plaintiffs claimed to be the owners of the staves by pur- chase from the manufacturers, and they brought replevin to recover the property. Service was made, and the defendant appeared and demanded a trial of the matters set forth in the declaration. Issue having been joined between the partie':, they went to trial, and the verdict and judgment were in favor of the plaintiffs. Exceptions were filed by the defendant, and he sued out the present writ of error. 446 MonEs OF outaimno titlk to i'ersoxal propertv. Errors assigned in the court are as follosvs: First. Tha the court erred in instructing the jury that as soon as the stave; were piled and counted, as provided in the second agreement the title to the same vested in the plaintiff company as vendee and in refusing to instruct the jury that the only interest th( plaintiffs acquired in the staves before they were delivered wa: as security for advances in the nature of a mortgage interest Sccoinl. That the court erred in refusing to instruct the jur; that, if there was no actual delivery of the property and chaiig( of possession, the agreement of sale was void as against th( creditors of the manufacturers, because not recorded as recjuirec by statute, l^hird. That the court erred in refusing t( instruct the jury that if the evidence did not show that the fift; thousand staves not piled on the leased land were not counted the title to that parcel did not pass to the plaintiffs for any pur pose, and that the defendant, as to that parcel, was entitled ti their verdict. Fourth. That the court erred in refusing t instruct the jury that under the agreement no title to any of th staves passed to the plaintiffs until they were actually places upon the leased land and were counted by the designated per son, and in instructing the jury that the title to the staves pild near the leased land passed to the plaintiffs. Fifth. Thn the court erred in refusing to instruct the jury that no title t any staves passed to the plaintiff other than those contracted t be sold by the first agreement, and that if the jury find th? there was any portion of the staves replevied not of thf description, that as to such portion the plaintiffs are not ent; tied to recover. Sixth. That the court erred in excluding th testimony offered by the defendant, as s^t forth in the record Sufficient appears to show that the m. uutu'^turers of th staves, on the day alleged, contracted with t\\t plamtiffs to sc them one million of white-oak barrel-staves of certain describe dimensions, to be delivered as therein provided, for the pric of $30 per thousand, subject to count and inspection by tli plaintiffs, who agreed to receive and pay for the same as fa as inspected. But before the staves had been furnished, to wi on the twenty-eighth of August in the same year, the pa ties entered into a new agreement in regard to the staves, i which they refer to the prior one, and stipulate that it is to coi tinue in operatioi, subject to modifications made in the ne PERSONAL rnOPEIlTV. i follows: First. That that as soon as the staves in the second agreement, intiff co'Tipany as vendee, hat the only interest the thoy were dclivjretl was ,• of a mortgage interest, using to instruct the jury f the property and change I was void as against the e not recorded as required rt erred in refusing to Jid not show that the fifty xl land were not counted, the plaintiffs for any pur- hat parcel, was entitled to 3urt erred in refusing to nent no title to any of the they were actually placed ted by the designated per- le title to the staves piled plaintiffs. Fifth. That ct the jury that no title to r than those contracted to that if the jury find that es replevied not of that the plaintiffs are not enti- )urt erred in excluding the as s^t forth in the record, the m. until '^.turers of the I with th" plamtiffs to sell ■staves of certain described sin provided, for the price unt and inspection by the pay for the same as fast had been furnished, to wit, the same year, the par- n regard to the staves, in \ stipulate that it is to con- n cations made in the new HATCH V. OH. COMPANY. ^147 contract, of which the following are very material to the pres- ent investigation: First. That the manutailurers shall make and deliver the staves properly piled in some convenient place, to be agreed between the parties, on land in Deerlield. to be controlled by the plaintiffs, and that the delivery shall be made as fast as the staves are sawed. Second. That the plaintiff shall furnish a man to count the staves from week to week as the same shall be piled. Third. That when the staves shall be so piled and counted, the person count- ing the same shall give the manufacturers a certificate of the amount, which, when presented to the plaintiffs, shall enti- tle the party to a payment of $17 per thousand as part of the purchase price. Fourth. That upon the piling and counting of the staves as provided, "the delivery of the same shall be deemed complete, and that said staves shall then become and thenceforth be the property of the plaintiffs absolutely and unconditionally. Other material modifications of the first agreement were made by the second, some of which it is not deemed neces- sary to consider in disposing of the case. Early measures were adopted to perfect the arrangements, as appears from the fact that the manufacturers, October 4 in the same year, leased to the plaintiffs a small tract of land to be used for piling and storing the staves; and the case shows that all the staves except fifty thousand were piled on that site, the fifty thousand staves being piled on land owned by the manu- facturers, about one hundred or one hundred and fifty feet dis- tant from the pile on the leased tract, on which were certain buildings owned and occupied by the lessors, the mill wneve the staves were manufactured being situated on the same sec- tion a little distant from the other buildings. None of the staves were manufactured when the contracts were made. It was admitted by the plaintiffs that the lease waa never filed in the clerk's office, and that it was never recorded in the office of the county register of deeds. Certain admissions were also made by the defendant, as follows: That the parties to the contracts acted in good faith in making the same, and that the contracts and lease were duly executed ; that all the staves seizeil were manufactured by the said contractors, and that all except fifty thousand of the same were piled on the leased tract. 44S MODES OF OUTAININCJ TITI.K TO PERSONAL PUOPKKTY. Nothinfr was required at cmiimon law to give validity to sale of pers83. ^1n an action for goods sold and delivered . the pro es delivery at the place agreed and that there Tothing further for him to do, he need not sho^v an a. Tthe defendant. Nichols v. Morse, xoo Mass. 5- vvLn a place of delivery is specified, itdoesno neces ow that'the title does not pass before they reach he c oHce as that may depend upon the nitent.on of the td whether they'did or did not intend that the title si before that is a question for the jury, to be etermine words, acts, and conduct of the parties and all the c, ces Dyer V. Libbey, 61 Me. 45- Where ,t appears hasbeen a complete delivery of the property ,n accorc th telsof as'ale, the title passes, although then omething to be done in order to ascertain the to^ v goods at the rates specified in the contract. Buuows IMAGE EVALUATION TEST TARGET (MT-3) /. /h. // - o,^, -^. m^ "m 1.0 I.I 1.25 IM IIIM 1 2.2 IM 1-4 IIIIII.6 6" 9 /} % >y / /; '/ Photographic Sciences Corporation ■7 23 WEST MAIN STREET WEBSTER, N.Y. 14580 (716) 872-4503 CIHM/ICMH Microfiche Series. CIHM/ICMH Collection de microfiches. Canadian Institute for Historical Microreproductions / Institut Canadian de microreproductions historiques \\ u { ' HATCH V. Oil, COMPANY. 453 kl i akcr, 71 N. Y. 291-396; Graft v. Fitch, 5S 111. 373; PussoU V. Canington, 43 X. Y. iiS, 125; Terry v. Wheeler, 2^, Id. 520, e,2S. Beyond controversy, such must be the rule in this case, because the contract provides that upon the pilin»;, rule of law the contract tion sol.l is e mass. It m difficulty, r. isputably as of one hun- the vendee, his rule pre- such that a or or not by n each other I selection is atter of the id the sever- the contract of an ascer- selection is y authorities atter of law, cndce to the is the clear e is no other nsfer of the d is that of as been the t to the point .-en properly IS of oil, in a erance of the held that the uld maintain cussed at the mething, it is neasuring off ig, however. CHAPMAN V. SIIEPARD. 459 remained to be done to complete the sale. The objection only applies where something remains to be done as between buyer and seller for the purpose of ascertaining either the quantity or the price, neither of which remained in this case." Nothing was said by the counsel or the court in the case of VVhitehousc v. Frost about a tenancy in common being created by the contract. In a subsequent case, Busk v. Davis, 3 M. «S: S. 397, the suggestion is made that the sale was of an undivided (luanfity of the oil, as it undoubtedly was; but thi>ugh the property was intermixed with other property of the same kind, the title was held to be in severalty for the practical purpose of being protected by an action of trover, and it is such a property as includes the ordinary risk of ownership, which indeed would be true whether the title were in common or in severalty. In the case of the oil it was the intention of the vendors to confer on the vendee a perfect right at any time to take his ten tons. The vendee was to have the same right to the ten tons that the vendors retained in the remaining thirty tons; and conceding such to have been the contract, why should the law disappoint that intention by an arbitrary rule of law against it.'' Among the earliest cases which we find on this subject in this country is that of Pleasants v. Pendleton, reported in 6 Randolph's Va. 473. The sale was of a certain number of barrels of flour, part of a larger parcel of such barrels, of the same brand and of equal value. The contract was complete in every respect except the separation of the barrels sold. The court held that the title passed, one of the judges saying: "These are not portions of a larger mass to be separated by weighing and measuring, but consist of divers separate and individual things, a'.\ precisely of the same kind and value, mixed with other separate and individual things of the sam« kind and between which there is no difference." The leading case on this subject in the state of New York is that of Kimberly v. Patchin. The matter is elaborately dis- cussed and the conclusion is well expressed in the reporter's syllabus: "Upon a sale of a specified quantity of grain, its sep- aration from a mass indistinguishable in quality or value with which it is included is not necessary to pass the title when the intention to do so is otherwise clearly manifested." i6 N. Y. 460 MOPES OF OltTAIMNG TITLE TO PERSONAL PROl'ERTV, 330. Jiulgc Comstock, in S'^'"" t'^c opinion of the court, rcinaiks: "It is not necessary to (iecide whether the parties to the sale became tenants in common. If a tenancy in common arises in such casus, it must be with some peculiar incitlcn^ not usually bclon^infif to that species of ownership." In Waldron v. Chase, 37 Me. 414, it was decided that where the owner of a larfjc quantity of corn in bulk sells a certain number of bushels therefrom and receives his pay, and the ven- dee takes away a part, the property in the part sold vests in the vendee, although it is not measured or separated from the heap. In Pennsylvania (7 Pa. S. T. 140, Hutchinson v. Hunter) and in Ohio (Woods v, McGee, 7 Ohio, 467), the courts seem to hold that severance from the mass is absolutely essential to the vestinj^ of title in the vendee. The opinion expressed in those cases is strongly in that direction, and yet the cases them- selves would be decided by us precisely as they are decided l)y those courts, for in the Pennsylvania case it appears that the subject of sale was part of a bulk of unequal quantities and values, and in the Ohio case the barrels of flour composing the bulk varied in value from twenty-five to fifty cents per barrel. If in the case we have under our consideration any such fact appeared, we should decide in favor of the defendant, for our decision is based upon the fact that the bags of meal do not appear to have been in any respect different one from another. The subject we are discussing seems to have perplexed the courts of Massachusetts. In the case of Scudder v. Worster, II Cush. 573, severance seems to be regarded by the court as essential in cases of this kind to the transfer of the title, and yet in a sonievvhat more recent case of Weld v. Cutler, 3 Gray, 195, it was held that upon a mortgage of a portion of a larger mass of coal, the title passed to the mortgagee as against an assignee in bankruptcy of the mortgagor without and before separation, where the whole mass was put into the possession of the mortgagee to enable him to separate his part from the bulk. Such a delivery is so decided evidence of an executed mortgage as to leave no doubt of the intention of the parties, and yet until the separation is made that act remains to be done, and the decision recognizes the title of the mortgagee as valid and executed in him prior to the severance and while the prop- erty is intermixed and in common, and thus seems to recog- Ol'ERTV. f the court, he jjarties to , ill common iiicitlcii^ not d that where ells a certain and the ven- 1 vests in the jm the heap. 1 V. Hunter) courts seem y essential to expressed in ! cases them- e decided 1)V )ears that the uantities and )mposing the ts per barrel, any such fact dant, for our : meal do not rom another, perplexed the • V. VVorster, y the court as the title, and itler, 3 Gray, 3n of a larger as against an it and before he possession part from the f an executed )f the parties, IS to be done, jagee as valid hile the prop- ems to recog- CHAPMAN V. SIIKPAllD. 461 nize the doctrine established in Virginia, New York, anc! Maine, that such a title is possible in law. If it be in law pos- sible, then its existence in a particular case must depend upon the clearly expressed wish and intention of the parties. In view of the authorities which we have commented upon and of the reason of the thing, we have come to the conclusion — -first, that there is no legal bar which prevents the transfer of the title until actual separation of the five hundred bags from the mass; and second, that the facts in the case before us war- rant the superior court in finding that the parties intended that the title should pass. The fact that the contract was executed on the plaintiff's part by the execution and delivery of his note, since paid, for the price, is very significant. There is no indi- cation in any part of the case of anyting executory remaining to be done by Gill. If the meal had been destroyed by fire and Gill had remained solvent, we think the plaintiff could not have successfully sued Gill for nondelivery as upon an execu- tory agreement to count out, separate, and deliver the five hun- dred bags. Gill's answer would be that he had done every- thing that he had contracted to do — everything which it was expected he should do. He had placed the property within the control of the plaintiff, who had assumed the control by taking away a part and allowing the residue to remain in the schooner for the defendant's convenience. The title then, we think, passed, whether in severalty or in common it is unnecessary to decide, for there are counts in the plaintiff's declaration adapted to either alternative. If there were evidence by express words or by fair inference of an intention on the part of Gill to confer, and on the part of the plaintiff to take, a joint title in the mass of the bags in the pro- portion of five hundred to the whole number, the case would be entirely free from the embarrassments which have been under consideration. It is, of course, competent for the owner of six hundred bags of meal of equal quality and value to sell five sixths of them, and to transfer the title of the five sixths with- out severance. In such case the ultimate severance, if it ever takes place, is not as between the parties as vendor and vendee, but between them as tenants in common after the full comple- tion of the sale. In such case after the sale the parties are tenants in common, with all the incidents of that relation. 462 MODUS Ol OIITAININC; TITLK TO rKllSONAI, PUOPKUTV. Hut tlierc is no evidence lliat Gill and the plaintiff intended a tenancy in eonimon, unless such a relation is the necessary couseciuencc of holding that the title passes while the property remains intermixed and unscparated. Hut if tiie intention of the i)arties is clear tliat the title shall he transferred, we should hold that such intention must be carried into effect, and if the oidy mode of accomplishing the purpose of the parties is through the medium of a tenancy in common, then such tenancy is created. The authorities, however, do recognize a species of title in severalty to a definite portion of property remaining intermixed with other property of the same identical kind. Thus in Gardner v. Dutch, 9 Mass, 427, the action was reple- vin for seventy-six bags of coffee which were lying in common with other bags belonging to third persons. These seventy-six bags were not distinguished by any particular marks, or by a separation of them in any manner from the rest of the coffee. The court says: "If the plaintiff was in the fact tenant in common, he could not maintain replevin; but he was not tenant in common. Although the bags belonging to him had no dis- tinguishing marks, he might have taken the number of bags and the quantity of coffee to which he was entitled by his own selec- tion while they remained in the hands of VVelman and Ropes." If then the title of the plaintiff was in a sense common, yet it was only quasi joint ; a <-emporary community only, was con- templated. The 1 laintiff was entitled to take immediate poc- scssion of his portion without let or hindrance from his com- panion in the ownership of the mass. In the case of White- house V. Frost it was held that this title is such that the plain- tiff might maintain trover for the conversion of his property against his companion upon proof of mere demand and refusal to deliver to the plaintiff his share, which could not be done in ordinary cases of joint tenancy. A new trial is not advised. See note to Scott v. Wells, post, p. 467. lOI'KUTV. itiff intended tlie necessary the property L- intention of d, we should ct, and if the ies is through h tenancy is ; a species of ty remain iiifj entical ile to ascertain it for himself. To hold that this turned the previous absolute sale into a con- ditional one, out of which the buyer could creep by refusing to cooperate in what was further to be done, and thus leave the property on the vendor's hands at a place remote from the market, would be not only unreasonable but inconsistent with the evident purpose of the parties. As to tlie declarations of Scott, on the one hand, that he had once considered himself the owner of the raft, and the consent of Eldred to remove it to Harding's landing, on the other, it is enough to say that these, though indicative of the understand- ing of the contract by the parties, were not conclusive of the title, and that they were properly left to the jtiry. What is conclusive of it, however, is that the terms of the sale were unconditional and sufficiently certain to pass the property in the first instance ; that there was no evidence of an act done to rescind or alter it, and that when the subsequent negotiations failed, they left the contract where they found it. Judgment afiirmed. CoxsiLT— Foot V. Marsh, 51 N. Y. 288; Linghain v. Eggleston, 27 Mich. 324; Hahn v. Fredericks, 30 Mich. 223, 18 Am. Rep. 117; Groff v. ]5eiche, 62 Mo. 400; Jennings v. West, 40 Kan. 373; Smith v. .Sparkman, 55 Mass. 647, 30 Am. Rep. 537; Elgee Cotton Cases, 22 Wail. 280; lliirtf V. Hires, II Vroom, 585, 29 Am. Rep. 386; F'erguson v. Bank, 14 Bush. 535, 29 Am. Rep. 418; Hutchinson v. Hunter, 7 Pa. St. 140; Mc- Laughlin V. Piatti, 27 Cal. 451; Cloke v. Shafroth, 137 111. 393; Hoff- man v. King, 58 Wis. 314; Smart V. Batchelder, 57 N. H. 140; Kim- berlv V. Patchin, 19 N. Y. 330; Scudder v. Worster, ii Cush. 573; Commercial Bank v. Gillette, 90 Ind. 268. 472 MODKS OF OBTAIXlNr. TITI.K TO I'F.RSONAL rUOI-EUTY. § 84. Same— Acts to be performed by parties. PRESCOTT V. LOCKE. [51 N. II. 94; 12 Am. Rep. 5.^] Supreme Judicial Court of New Hampshire, 1871. The plaintiff sold defendant one hundred thousand vv.ilnut spokes, at forty dollars per thousand, which spokes were to be sawed by the plaintiff and delivered to the defendant in lots of ten thousand each. But before delivery plaintiff understood that he was to count the spokes to be delivered, and the defend- ant also understood that he was to count them before takings them from the mill. The first lot of ten or twelve thousand was selected by plaintiff and piled up, but not counted by the defendant. The plaintiff afterward counted the selected pile and charged them to the defendant, but before they were counted or removed by the defendant they were burned with the mill. Foster, J. — The contract in this c.ise was not for the olaintiff's labor, but was for the sale of merchandise to be sub- sccjuently .nanufactured. It was not a contract to make spokes for the defendants ; but it was an agreement that the defendants "would buy of the plaintiff what walnut spokes he should saw at his mill, at forty dollars per thousand" for the manufactured article. Where the contract is for a chattel to be made and delivered it clearly is a contract for the sale of goods. In such case the party supplying the chattel can not recover for his labor in making it. If the contract be such that when carried out it would result in the sale of a chattel, the party can not sue for labor; but if the result of the contract is that the party has done work and labor which end in nothing that can become the subject of a sale, the party can not sue for goods sold and deliv- ered. The case of an attorney employed to prepare a deed is an illustration of this latter proposition. It can not be said that the paper and ink he uses in the preparation of the deed are goods sold and delivered. Per Blackburn, J., in Lee v. Griffin, i E., B. & S. 273. iai I'EUTY. rilESCOTT V. LOCKE. 473 , 1871. and walnut were to be nt in lots of understood the defend- fore takings ve thousanil 11 ted by the selected pile ; they were jurned with not for the le to be sub- ndants ; but buy of the mill, at forty nd delivered iuch case the his labor in irried out it not sue for the party has 1 become the »ld and deliv- are a deed is not be said of the deed J., in Lee v. I Illustrations of the former propositions are: Where a car- riage was ordered to be made, which would never, but for the order, have had an existence, but when made becomes the sui'- ject of sale. This principle has been applied even to a contract for the making of a coat, a statue, a set of artificial teeth, from materials provided by the maker, even where the peculiar skill of the maker is considered to be an important element in the consideration of the contract; for the value of the skill and labor, as compared with that of the material supplied, is not a criterion to determine what the contract is. The true construction in this case is, that the contract was for the future sale of the spokes, when they should be in a state tit for delivery. The vendor, so long as he was sawing the lim- ber and doing any other work preparing it for delivery in the form of spokes, was doing work for himself upon his own materials, and not for the defendants. Smith v. Surman, 9 13. & C. 561. Where the contracting parties conte:. plate a sale of goods, although the subject-matter at the time of making the contract does not exist in goods, but is to be converted into that state by the vendor's bestowing labor on his own raw materials, that is a case of a contract for sale, within the statute of frauds. Garbutt v. Watson, 5 B. & A. 613 ; Smith v. Surman, before cited. This was a contract for the purchase of such walnut spokes as the plaintiff should saw at his mill, not exceeding one hun- dred thousand, to be delivered at the mill in lots of about ten thousand each, subject to the defendants' selection. It would be absurd to say that the defendants were to select the spokes before they had become the subject of sale, prepared, by the previous work of the vendor, for the market. The plaintiff was to convert the timber into spokes, and, when so converted, the delivery and acceptance thereof were' to occur. Until that time the contract would remain executory, and the title to the property would continue to be in the plaintiff. If the plaintiff had caused or permitted the spokes to be improperly or imper- fectly manufactured, or to be made from other than good wal- nut timber, the defendants would not have been bound to accept or pay for them. Gorham v. Fisher, 30 Vt. 428. 474 Monies ()!• OUTAININO l l II.E to I'KHSONAI. IMIOI'KKTV, Still the plaintiff would not necessarily lose the price of his hilior. If the i)urchaser did not take the ^'oods, others prol)a- l)Iy would. The lal)or bestowed on them was in the line of his business, and we may reasonably infer that his labor wDuld have been bestowed in the production of sucii goods had the contract not been made. Cason v. Cheely, 6 Ga. 554. It is very clearly settled by the more recent Enj^lish and American cases, that it is not essential that tiie jjoods be capable of delivery at the time of makinjj the contract, to bring it within the statute of frauds. Pitkin v. Noyes, 4S N. II. 39S; Finney v. Apgar, 31 \. J. 266. In Pitkin v. Noyes, it is said, "If, however, a person con- tract to make and deliver, at a future time, certain goods at prices then lixed, or at reasonable prices, the essence of the agreement being that he will bestow his own labor and skill upon the manufacture, it is held not to be within tiie statute;" and such is undoulitedly the law. In that case it was deemed proper to leave it to the jviry, in view of all the circumstances of the case, to iind whether the contract was essentially for the labor and materials of the defendant in raising the potatoes, so that he was bound himself to raise them, or whether it was substantially a sale of potatoes which he might raise himself, or procure by purchase or otherwise. The remark of the court that "it is obvious that the plaintiffs might have an interest in stipulating that the defendant should himself raise the potatoes" preceded this disposition of the case, and the considerations suggesting that remark apparently controlled the disposition of it. We understand the expression quoted from Pitkin v. Noyes to mean, not precisely what is literally imported by it, but rather that it might be obvious that the plaintiffs might have an interest in stipulating that the potatoes should be raised upon the defendant's land, which might be regarded as peculiarly adapted to the raising of potatoes of a superior quality. And if that be the construction to be given to the remark, the con- sideration and the result were well enough. But in the present case, it appears that it was no part of the essence of the contract that the plaintiff should, with his own hands and by the exercise of his own peculiar skill, manufac- ture these spokes, which the defendants were only bound to I'KIMV. I'KEsiurr V. i.oLKE. 175 price of his icrs proba- ! line of his abor would D(ls had the 54- nj^lisli and be capable to bring it S\ II. 29S; )erson con- in floods at nee of the r and skill c statute;" vas deemed cumstanccs iaily for the potatoes, so ether it was isc himself, of the court 1 interest in le potatoes" nsiderations disposition :in V. Noyes 1 by it, but ight have an raised upon s peculiarly ality. And irk, the con- a part of the ith his own 11, manufac- ly bound ta take after tlicy had been culled out and selected by themselves. I'liis being a contract for the sale of chattels, we coMie,tiicn, to the question whether there was such a delivery and accept- ance of the spokes as transferred the property and title from the plaintiff to the defendants; for it is conceded that there was no part payment, earnest, or memorandum given, within tiie terms of the statute of frauds, (ien. Stats., ch. 201, sec. If. And, therefore, the plaintiff can not maintain assumpsit founded upon the contract, either for goods bargained and sold, or for goods sold anil delivered, without showing s',e truly said that it is not yet perfect, in this respect, that as yet it is onlv an object which is iudeternnnate, and which can he determined only by the mcasurin};, weighing, or counting. For this reason, until the thing is measured, weighed, or counicd, it does not become at the risk of the buyer; for the risk can not fall but upon some determinate thing. "This rule holds, not only when the sale is of a certain quantity of merchandise, to be taken from a magazine which contains a larger quantity, because, in such a case, as we have seen, until the measuring or weighing, that which is sold docs not consist of any determinate body or thing upon which the risk may fall ; it also holds when the sale is of the entire quan- titv contained in a magazine or granary, provided it is made at the rate of so much the pound, or so much the measure, etc. '•The sale in this case is not considered as perfect, and the thing sold is not at the risk of the buyer, until it is measured or weiglied ; for. until that time, fion apparct qtiatitiim vciticrit. The price, being constituted only for each pound which shall be weighed, or for each cask which shall be measured, is not yet determined, before the weighing or measuring; and conse- quently the sale, before that time, is not so far perfect that the risk of the thing may fall upon the buyer. He ought not to be charged with it until after the goods are weighed or measured. "Hut if the goods are not sold by weight or measure, but fcr avcrsioiiciii, that is, in bulk, and for a single and only price — in such case the sale is perfect from the instant of the con- tract, and from that time these goods, the same as all others, are at the risk of the buyer." The learned writer then proceeds to lay down certain rules for tletcrmining when the sale is considered as made per aver- sioiiciii, mmX when by measure; and in the latter category he places the case where the price is expressly agreed upon for each measure: "whether the contract imports that it is of so many bushels of the grain in such a granary, at the rate of so much the bushel, or of a heap cf grain, which is in such a granary, and which contains a thousand bushels, at the rate of so much a bushel." lOCKItTV. oriic in mind ihanassi-d liy t, tlu/uph tlie ic, it may l>e tliat as yet it ^liicii cim l)c unting. For , or coiimcd, r the risk can of a certain j^azine whicii e, as we have li is sold does »on whicli the : entire quan- it is made at ;asnre, etc. rfect, and the ) measured or turn vciiicrit. d which sliall asiircd, is not g ; and conse- irfcct that the ight not to he or measured, measure, but nd only price It of the con- as all others, 1 certain rules ladc per aver- n- category he reed upon for hat it is of so the rate of so 1 is in such a at the rate of rtlKSlDTT V. I.OCKE. 177 This sale is considered to he made f>cr avcrsioticiu "wlien it is made for a single price, not of so many measures of such a tiling, hut of such n thing which is declared to contain so many nieasures." In such case the expr.^ssion of the numher has no other effect than to oblige the seller to make an allowance for the defect of (luautity. Pothier, Contr. of Sale, sees. 309, 310. Tried by these tests, which we believe to be sound, it is (|uite clear that the contract before us was for a sale by meas- ure or count, aiul not n sa\c per avcrsioncm ; and that the spokes were at the risk of the seller until the sale was perfected, whicii could not he so long as non apptint qiiantum vciiict. Now the question here is, Was this sale perfected, so as to pass the title to and impose the risk upon the purchaser.' Whatever may have been the intention or understanding of either pnrty, or of both, it must be controlled by the statute of frauds. The statute is highly beneficial, indispensable indeed, and it must receive a favorable and liberal construction, iit sit fniis litium^ and to prevent perjury, and the mistakes and dangers resulting from evidence founded on imperfect inemory. liy the terms of the statute, in the absence of part payment or a written memorandum, the buyer must "accept and actually receive" the property. It follows, therefore, that although, as a matter of fact, in a particular case, there may be acceptance without delivery, or delivery and reception without acceptance, both conditions must be fulfilled before the title and risk can be transferred. And the acceptance must be clear and une- quivocal. Nicholle v. Plume, i C. & P. 272. In thiy case, the culling of the spokes was not an acceptance of quantity, but only of quality — for then the quantity and price of the quantity was indeterminate ; still there was a manual caption of the spokes by the buyers, at the place of delivery. Such delivery and reception was not enough to transfer the title and risk, without an acceptance of the property as a deter- mined quantity ; for such an acceptance depended upon a count- ing of the spokes. But after the culling of the spokes by the buyers, the seller counted them, and charged them upon his book to the buyers. Whether this act of the seller can be regarded as a completion of the purchase, so as to transfer the title and risk to the defend- 47S MODES OF OnTAIXINT, TITLE TO PERSONAL PROPERTY. ants, mav be a question to be governed l)y the understanding and intention of the parties. It must, of course, be a mutual understanding and intention; otherwise it is no element in the contract. It is manifest that the defendants are not to lie bound and conchided as to quantity, and consequently as to price, un- less they have expressly or impliedly agreed to be so bound. Upon this subject the case finds that nothing was said about counting the spokes. The plaintiff understood that he was to count each lot selected by the defendants, and the defendants understood that they were to count each lot selected by them, before they took them from the mill ; but it does not appear that both parties understood the defendants were to count the spokes. Still, if the defendants understood they were to count the spokes, it is manifest they understood that they were not to be bound by the plaintiff's count. Could the plaintiff have understood the reverse of this? If so, would he not have rendered a bill of the quantity? The year preceding, the defendants had purchased of the plaintiff about twenty-seven thousand spokes, which were selected by the defendants and counted by both parties before they were removed from the mill. This fact would tend, in some degree, to show thac the plaintiff, as ^ ell as the defendants, under- stood that the latter were not bound to accept the count of the former as true. Tlie evidence of both defendants was admissible, to show their independent understanding in this particular — Graves v. Graves, 45 N. II. 323; Hale v. Taylor, Id. 406 — provided such understanding does not come in conflict w^ith legal principles or an express provision of law of superior and controlling effect. Blake v. White, 13 N. H. 272; Ilale v. Taylor, before cited; Delano v. Goodwin, 48 N. H. 206; Conk v. Bennett, 51 N. II. 85. This is a question of the construction of the agreement be- tween the parties ; and it is clear that the parties have not expressed, by the terms of the contract nor by their acts, their intention in a manner that leaves no room for doubt. The in- tention, therefore, must be collected from the whole agreement and the conduct of the parties, and it must be governed by the settled legal rules of construction, if any such rules are found to be apjjlicable. SIAL PROPERTY. the understanditig lursc, be a mutual no element in the are not to he bound itly as to price, un- to be so bound. ng was said about )od that he was to md the defendants selected by them, t does not appear were to count the they were to count at they were not to everse of this? If ;he quantity ? The cd of the plaintiff 1 were selected by s before they were nd, in some de,ivingston, 153 Mass. .-^SS; Nofsinger v. Ring, 71 Mo. 147; Pitts R. Co. v. Heck, 50 Ind. 313, 19 \m. Rep. 70; Jennings v. Flanagan, 5 Dana, 217, 30 Am. Dec. 1S3; Cleveland v: Williams, 29 Tex. 204, 94 Am. Dec. 274; Sedgwick v. Cottingham, 54 la. 572. § 85. Same— Grain in elevators. GUSHING v. BREED. [14 Allen, 376; 92 Am. Dec. 777.] Supreme Judicial Court of Massachusetts, 186"/. Contract to recover the price of five hundred bushels of oats sold and delivered. The answer admitted the sale and delivery of one hundred and five bushels, and offered judgment for the price thereof, and denied the residue. It appeared that the plaintiffs were owners of a cargo of oats, which, on being weighed, was found to contain six thousand, six hundred and ninety-five bushels, and was stored in the Merchants' Grain 4^4 MODKS OK OHTAININO TITLF- TO PI-KSOXAL I'KOPKKTY. Ek-%ator in Boston, which hclonsed to persons \vhn?c business it \NUs to receive, elevate, store, \vei},'h, and deliver grain. The plaintiffs thereafter agreed to sell to tlie defendants five hundred bushels thereof, and delivered to them the following order upon the proprietors of the elevator, dated June 3,^, iS6i: "IMcase deliver Breed iS: Co., or order, tivc hundred bushels of black oats from cargo, per schooner Seven Brothers, storage commencing, to the person or persons in whose favor this o"rder is drawn, June 29, 1S64." This order was presented on June 25, 1864, and accepted in the usual manner. The order was entered in the books, and on the same day one hun- dred and ilve bushels of the oats were delivered to defendants, and before July 5, 1S64. the whole cargo had been sold and delivered and removed from the elevator, except one thousand, two hundred seventy-four bushels, which included the three hundred and five bushels af;rced to be sold to the defendants. On the fifth day of July a fh-c occurred, which rendered the oats which remained in the elevator nearly worthless. It was the general usage of dealers in grain in Boston to place large ciuantilicsof grain in elevators, where the same remained until sold, by orders given to the purchaser, and after such sale it was removed from the elevator or kept therein, at the election of the purchaser. After tlie acceptance of such order by the proprietors of the elevator, the grain covered thereby was treated by them as the property of the purchaser ; the vendor had no further control over it, but the proprietors held the same subject to the order of the purchaser, received orders from him in the same manner as from the original vendor, or weighed it out to him as he required, they guaranteeing to deliver out the full number of bushels weighed into the elevator, charging him with storage. Different cargoes of the same quality, belonging to different owners, were sometimes mingled in the bins. Grain so bought was paid for without regard to whether or not it had been separated and removed from the elevator, and all damage to grain so sold, from internal causes occurring after the delivery of the order, was borne by the purchaser. All the above usages were known to the defend- ants, but they objected to the evidence to prove the same. The judge ruled that there was no such change of title to the grain, except as to the one hundred and five bushels actually ROnCKTY. Iin?c business Iclivcr grain, cfciulants live tlic follovvinjT ted June 23, , five hundiecl ven Brothers, n whose favor was presented nanner. The day one hun- to defendants, been sold and one thousand, ded the three ;ie defendants. rendered the hless. It was to place large remained until er such sale it at the election h order by the I thereby was cr ; the vendor ietors held the eccived orders inal vendor, or [uarantccing to to the elevator, 3 of the same etimes mingled thout regard to loved from the internal causes i borne by the 1 to the defcnd- rove the same. ;e of title to the bushels actually CLJiUlNG V. nUKEll. U^5 removed by the defendants from the elevator, as to make the defendants liuole, and found that the plaintiffs were only entitled to recover the price agreed for the one hundred ami five bushels, with interest. The plaintiffs alleged exceptions. CiiAPMAX, J. The use of elevators for the storage of grain has introduced some new methods of ilealing, but tiie rights of parties who adopt these methods must be determined by tiie principles of the common law. The proprietors of tlie elevator are the agents of the various parties for whom they act. When several parties have stored various parcels of grain in the elevator, and it is put into one mass, according to a usage to which they must be deemed to have assented, they are tenants in common of the grain. Each is entitled to such a propoition as the quantity placed there by him bears to the whole mass. When one of them sells a certain number of bushels, it is a sale of property owned by him in common. It is not necessarv to take it away in order to complete the purchase. If the vendor gives an order on the agents to deliver it to the vendee, and the agents accept the order, and agree with the vendee to store the property for him, and give him a receipt therefor, the delivery is thereby complete, and the property belongs to the vendee. The vendor has nothing more to do to complete the sale, nor has he any further dominion over the propertv. The agent holds it as the property of the vendee, owned by him in common with the other grain in the elevator. It is ele- mentary law that a tenant in common of personal propertv in the hands of an agent maj' sell the whole or any part of his interest in the property by the method above stated, or by any other method equivalent to it. Actual separation and takin"- away are not necessary to complete the sale. As to the prop- erty sold, the agent acts for a new principal, and holds his property for him. The law is the same, vVhether the proprie- tors are numerous or the vendor and vendee are owners of the whole. If the vendee resells the whole or a part of what he has purchased, his vendee may, by the same course of dealing, become also a tenant in common as to the part which he has bought. This is not like the class of sales where the vendor retains the possession, because there is something further for him to do, Mi 486 MODES OP OBTAINING TITLE TO PEHSONAL PROPERTY. such as measuring, or wcighinrr, or inarkiiis- as in Scuddcr v. Worcester, ii Cusli. S73; nor like the case of Weld v. Cutler. 2 Gray, 195, where the whole of a pile of coal was delivered to the vendee in order that he might make the separation. But the property is in the hands of an agent; and the same person who was the agent of the vendor to keep, becomes the agent of the vendee to keep ; and the possession of the agent becomes the possession of the principal. Hatch v. Bayley, I3 Cush. 37, and cases cited. The tenancy in common results from the method of storage which has been agreed upon, and supersedes the necessity of measuring, weighing, or separating the part sold. No delivery is necessary to a tenant in common. Beaumont V. Crane, 14 Mass. 400. Upon these principles, the plaintiffs .are entitled to recover the amount due them for the property thus sold and delivered to the defendants. The damage occasioned to this property by tlie fire must be borne by the defendants, as owners of the property. Exceptions sustained. CoN.,(LT— Dole V. Olmstcnd, 36 111. 150,85 Am. Dec. 397; 41 111. 344. Sg .\m. Dec. 386; Newhall v. Langdon, 39 Ohio St. 95; Keelerv. Good- man, III Mass. 491. § 86. Payment as condition precedent. PAUL V. REED. [52N. II. 136.] Supreme Judicial Court of Nexv Hampshire, 1872. One Reed sold Moody a hog, some flour, butter, a bedstead, some sugar and salt, at an agreed price of thirty dollars and thirty cents cash on delivery. The hog was put into a separate pen, and the sugar put with other sugar of Moody's. Just as Moody was to hand Reed the cash, the sheriff, standing by, served a process on Moody, as trustee (garnishee), in an action of one Azor Paul against Mr. Reed. Whereupon Moody refused to pay Keed the cash, and Keed reclaimed his property; ROPER TY. in SciifUlcr v. 'dd V. Cutler, IS delivered to )aration. But le some person ,'s the agent of ;igcnt becomes , 13 Cush. 37, suits from the md superscdfs ating the part n. Beaumont tied to recover \ and delivered lis property by owners of the ions sustained. 397; 41 111. 344, ; Keelerv. Good- ii-e, 1872. ter, a bedstead, rty dollars and t into a separate lody's. Just as f, standing by, ;e), in an action jreupon Moody ed his property; PALL V. RKED. 1S7 the cotn't, however, held the trustee chargeable with the thirty dollars and thirty cents, Reed duly excepting. Bem.ows, C. J. — Unless the principal defendant had another hog and other provisions or fuel, so that the value of his pro- visions and fuel exceeded twenty dollars, all the articles sold to the trustee were exempt from attachment. As there is no ij)roof that he had another hog, or more provisions, or fuel, the court can not fuid that he had such ; and, therefore, unless the title in these goods had vested in the trustee so that he became indebted for them, the trustee must be discharged. The ([uestion then is, whether the goods were delivered so as to vest the title in the trustee. The proof tends to show that the sale was for cash, and not on credit; so the trustee testifies, and this is just what would have been intended had no time of payment been stipulated. 2 Kent's Com. 496, 497; .Story on Con., sec. 796; Noy's Maxims, 87; Ins. Co. v. De Wolf, 2 Cow. 105. The case, then, stands before us as a contract of sale for cash on delivery ; in such case the delivery and payment are to be concurrent acts; and, therefore, if the goods arc put into the possession of the buyer in the expectation that he will immediately pay the price, and he does not do it, the seller is at liberty to regard the delivery as conditional, and may at once reclaim the goods. In such a case the contract of sale is not consummated, and the title does not vest in the buyer. The seller may, to be sure, waive the payment of the price, and agree to postpone it to a future day, and proceed to complete the delivery; in which case it would be absolute, and the title would vest in the buyer. But in order to have this effect, it must appear that the goods were put into the buyer's possession with the intention of vest- ing the title in him. If, however, the delivery and payment "were to be simulta- neous, and the goods were delivered in the expectation that the price would be immediately paid, the refusal to make payment would be such a failure on the part of the buyer to perform the contract as to entitle the seller to put an end to it and reclaim the goods. This is not only eminently just, but it is in accordance with the great current of authorities, which treat the delivery, under .jSS MonF.s ni- oiiiaininm; irri.K to pkusonal imioi'kk iy. siuh civcnmstiitucs, as conditional npon the immediate payment of tlR- i)iicc. 2 Kent's Com. 197; Cliilty on Con. [y Am. Kd.] V-^O' ""'*' ' ''"'' '^•■"*^'^= '"^^''''y °" ^°""* **''"'^*'" ''''^^'' '"^"^ Palmer v. liand, 13 Johns. 43 1 ; Marston v. Baldwin, 1, Mass. 605; Liven V. Smith, i Demo, 573. and cases cited. So the doctrine was Inlly reco-ni/ed in Hnssell v. Minoi, 23 Wend. r):;y, where, on the sale of paper, it was a<,nced that the buyer should give his notes for it on delivery, an.l the delivery was in several parcels. On delivery of the lirst, the seller asl- d for a note; hut the Iniyer answered that he would <,nve his note for the whole when the remainder was delivered, and the i)arcel now delivered could remain until then. When the rest was delivered the defendant refused to give his note; and the court held that the delivery of all the goods was conditional, and that the seller mi-;ht maintain replevin for all the Roods. The <>;. n- c-ral doctrine is fully recognized in this state in Luey v. IJunily, 9 N. II. 29S, and more especially in Ferguson . Clifford, ,^7 Id. 86. where it is laid down that if the delivery takes place when payment is expected simultaneously therewith, it is in law made upon the comlition precedent that the price shall forthwith be paid. If this condition be not performed, the deliverv is inoperative to pass the title to the pro.perty, and it may be instantly reclaimed by the vendor. The question then is, whether the delivery here was absolute, intending to pass the title to the vendee and trust him for the price, or whether it was made with the expectation that the cash would be paid immediately on the delivery. This is a question of fact, but it is submitted to the court for decision. Ordinarily it should be passed upon at the trial term; out where the question is a mixed one of law and fact, as it is here, it may not be irregular, if the judge thinks it best, to reserve the entire question for the whole court. Assuming that the questions both of law and fact are reserved, we find that the goods were sold for cash, and of course that the delivery of the goods and the payment of the price were to be simultaneous ; and, accordingly, when a part had been delivered and the seller was figuring up the amount, and the buyer had taken out his money to pay the price, the act was arrested by the service of this process. The evidence relied upon to prove the delivery to be absolute and intended to pass the title at all events is simply and solely I'UOl'Kll lY. icdiato pnyniiiit 1 Ctm. [y Am. sees. 796, S04 ; Ulwin, r, Mass. ; cited. So the iiioi, 23 W'eml. tl tliat the buyer ; delivery was in eller asl i\ tor a ;ive his note l'i>r , and the jiarcel len the rest uas e ; and the court Jitionai, and tltat cods. The gt n- Luey V. IJundy, n . Clifford, ,:^7 very takes place lercvvith, it is in t the price shall t performed, the prqperty, and it ere was absolute, trust him for the lectation that the i%-ery. This is a Durt for decision. e trial term ; but fact, as it is here, t best, to reserve assuming that the we find that the the delivery of the be simultaneous ; delivered and the .lyer had taken out sted by the service very to be absolute ; simply and solely PAUL V. REED. 4S9 tlic changing of the hog into another pen and mising the sugar with other sugar of the buyer. Witiiout this mixing of the sugar, the case would be just the ordinary one of a delivery of the goods with the expectation that the buyer would at once ])av the price ; and we think that circumstance is not enough to siiow a purpose to make the delivery al)solute, but rather a confident expectation that the buyer would do as he had agreed and pay the price at once. The case of Henderson v. Lauck, 31 l*a. St. ,^59. was very much like this. There was a sale of corn, to be paid for on the delivery of the last load ; and as the loads were delivered the corn was placed in a heap with other corn of the buyer, in the i>resence of both parties. On the delivery of the last lot the buyer failed to pay, and the seller gave notice that he claimetl the corn, and brought replevin, which was held to lie — the court regarding the delivery as conditional, and the plaintiff in no fault for the intermingling of the corn. It is very clear that the intermingling of the sugar does not, as matter of law, make the delivery absolute; and I think, as matter of fact, it is not sulficient to prove an inten- tion to pass the title absolutely. WMien the buyer declined to pay the price, the seller at once reclaimed the goods, and so notified the buyer, who did not object to giving up the sale if he could safely do so. In respect to the question now before us, it is not material for what reason the buyer declined to pay for the goods, although the service of the trustee process might shield him from damages in a suit by the seller for not taking and paying for the goods. For the purposes of this question, it is enough that the buyer did not pay the price, and thus gave the seller a right to reclaim the goods, which he did at once. The goods themselves were exempt from attachment; and the fact that the trustee process was designed to intercept the price of those goods could not affect his right to redaim them when the buyer declined to pay the price. The exception must therefore be sustained, and the trustee discharged. Consult— Fishbach v. Van Dusen, 33 Minn, ni; Prentiss Tool Co. V. Schirmer, 136 N. Y. 305, 32 Am. St. Rep. 737; Crompton v. Beach, 62 Conn. 25; Palmer v. Hand, 13 Johns. 474; Adams v. O'Connor, 100 Mass. 515; Ames v. Moir, 130 111. 582; Reybold v. Vorhies, 30 Pa. St. u6. 4yO MOPES OF OnTA.NlNO TITI.K TO PKUSONAL l-UU.'ICIMV. § 87. Delivery to carrier. llAILliY V. HUDSON RIVER R. CO. [49 N. Y. 70-] Court of Appeals of Nc-M York, l8j2. Action by Bailey & Company aRainst defendant for the con- version of certain dry goods delivered to defendant and con- sif^ned to plaintiffs. Cmucii, C. J.— It is undispnted that Aldcn. Frink .S: Wcs- ton delivered the goods in cpiestion to the ..ofendant, to be transported by them to the plaintiffs; that they were consigned to the plaintiffs, and the packages properly marked w.th the name of the plaintiffs' lirm, and the defendant gave a receipt for the same, agreeing to deliver the goods safely to the plani- tiffs at the citv of New York. It is also undisputed that the plaintiffs had'madc a specific advance upon a portion ot the goods, and the remainder were shipped in pursuance of an a.Mcement between the plaintiffs and Alden, Frink .S: Weston, to pay for monev borrowe.l by the latter of the former a few days previous, and that invoices of all the goods, statmg the consignment and shipment by the defendant's railroad, had l,cen forwarded to the plaintiffs by mail. This was snbstan- tially the condition of things on the seventeenth of October, when one of the members of the firm of Alden, Frink Si Wes- ton, for his individual bene , but in the name of his firm, ch; igcd the destination of the goods, and the defendant deliv- ered Uiem in pursuance of such changed destination to another person. The question is. whether the title had vested in the plaintiffs. I think it had. It is clear that the consignors deliv- red the goods to the carrier for tlic plnintiffs in compliance with their contract to do so. The )>rircl contract was thereby executed, and the title vested in r.h.. i.laintiffs. The plaintiffs occupied the legal position of vendees after having paid the purchase-money and received the delivery of the goods. But it is unnecessary, in order to uphold this judgment, to maintain that the plaintiffs occupied strictly the relation of vendees. Ol'IiKTY. OAILEY V. HUDSON KlVI.It l(. CO. .\',l :o. t for the con- mt and con- ^■ink .t Wes- :ndant, to be ere cotisif:;ned rked with the ^ave a receipt / to tiie plaiii- uted that tlie )ortion of the suancc of an nk forwarding invoices of the shipment to the plaintiffs. 3. Bv making the shipment unconditionally. ,. By retaining the receipt given by the defendant, and neither n:: king nor attempting to make any vise of it. These acts were so unequivocal of an intention to transfer the property to the plaintiffs that there remains no room for mm BAII.EV V. HUDSON lUVKK K. CO. 493 , PUOl'KRTV. ad shipped ilie ent, or in any I'inced. llie title if lie had inr- er a subsequent ^ideratio.i could involved. As ty to the carrier the title in the ,n. In Mitchell ifendants, Lord to transfer the d we think that tion into effect." oi, 55 Am. Dec. iig has not been ;r evidence of an sign the specific ; case the bill of but was trans- pon it, and there the flour to the ic Roo.ls to tl,o cnicr, jvith the ;:;:r;o,,toco,.c.t,.,.i^o.a.i..t>.„^.^^^^^^^^ •"";■"" 'T'\'°':\,, ' , r acti,,,, i. complete 1 »".! 1.= of the ">""•»■'.';,, ;„„,„ ,„,„ the ,»rcl..,»r, vvhete 7''"I"r . *^-e, to taUe, the Ko„.l» from the U,e P°-'- ;;'„„„,„ ,„„ „.e p»s.,ge of the title to the ™ ,«, i, o es.e„t,al .0 tne le^al eomple.e„es» of the co„- "■"" ? „l V le \ he eh the »ellef tender, delivery at the » '»""■»" °' '■''°; ,,',;,,.„ „„rce.l upon, In,, the purchaser time ami place oi dcluciy „„,foetly tan.iliar laiv refuses performauee. "•';,-';',' „,,,'„ of the goods that .1- P-*-; :;;«;;' ,'\r'hnd Ihem. The order :rr '.; ■" °' --W a superadded terut of the cou.ract; u f',-T •. ' e performed l,y the purchaser, aud has uo 'I'r rife.t upo:. the Jontract than any other term aflectur, the other ^"^-t " ,„ performed l.y the purchaser, ficlum e' del vcj. t m. _ ^^ particular time '"" " ' ;-c'; r X' '" nprrfo'rmauce is a hreach hy the r ^::.:'u.r:ost cntiea, ^^^^^^--^ — : ■'-r'' Tirdii::;.;"";:' iir r het.een .hose . .. '^:. a"':i:ose of the ^chaser are those only .^..^p-- 1 nr,- to be performed by, tne caiuci. > to, and aic to 1 .^^ ^^ ^^^^.j ^^„j ,ie- have before seen a. e ^^ "- ;7;' .;^^i^..„,,, ^he price from the IWery, with the add.t.onal ^' y « J^ ^ ;- ^.^ ,,,y decided ^"^r::;.rl:Ct:; :;: "d l.h presents^he effect case to wl"^^ w^ « ^^,.,,,, ;, „i.gins v. Murray, 73 ^• r;wr:;;:;tt:rtnefendantC.O.O., aud they I itea [>Rori;KTY. CO.MMONWKAI.Til V. FI.UMING. 499 licr, with the ; piiichasor, he ntract; he has erform his part nplctc ; and he irchascr, where roods from the tlie title to the less of the con- iidinary case of delivery at the t the purchaser tly familiar law ice of the goods cm. The order of the contract ; iser, and has no ;rm affecting the ! the pnrchaser, t particular time s a breach by the ■e can not affect sale as complete, )ut any regard to lias passed to the roods by him. If s to the ground, of the contract for civil purposes rtcen those of the inly which pertain er. These, as we •f carriage and de- thc price from the The only decided presents the effect 5 V. Murray, 73 ^'• ; plaintiff to mann- they were finished, C. 6. D., and they svere destroyed by fire on the route. It was held that tlie dcfenilant, who was the ]iurcliaser, should bear the loss; that the plaintiff had a lien on the tents for the value of his labor and materials, and his retaining his lien by shipping them C O. D. was not inconsistent with, and did not affect, his rigiit to enforce the defenilant's lial)ility. In the course of the opinion. Chief Justice Church said: "Suppose, in this case, that the defendant had refused to accept a delivery of the tent, his liability would have been the same, although the title was not in him. The plaintiff had a lien upon the article for the value of his labor and materials, which was good as long as he retained possession, ♦ • • Retaining the lien was not inconsistent with his right to enforce the liability for which this action was brought. That liability was complete when the request to ship was made by the defendant, and was not affected by complying with the request, nor by retaining the lien the same as when the request was made. As the article was shipped at the request of, and for the benefit of, the defendant (assuming that it was done in accordance with the directions), it follows that it was at his risk, and could not impair the right of the plaintiff to recover for the amount due liim upon the performance of his contract. * ♦ « As before stated, the point as to who had the title is not decisive. It may be admitted that the plaintiff retained the title as secur- ity for the debt, and yet the defendant was liable for the debt in a proper personal action," It seems to us this reasoning is perfectly sound. Practically, it was ruled that the effect of the order C. O, D, was simply the retention of the seller's lien, and that such retention of lien is not inconsistent with a right of recovery for the price of the article, though, in point of fact, it is not delivered to the purchaser. Ii> other words, the literal state of the title is not decisive of the question of liability of the purchaser, and he may be compelled to pay for the article, though he never received it into his actual possession. The chief justice propounds the very question suggested, heretofore, of a refusal by the purchaser to accept the article, and holds that his liability would be the same, though the title was not in him. In Hutchinson on Carriers, at section 389, the writer thus states the position and duty of the carrier: "The carrier who 500 MODES OK OllTAlNING TITI.K TO I'KRSDVAI. PROPERTY. accepts the goods with such instructions [C. O. D.] undertakes tliiit tliey sliall not lie delivered unless the condition of payment be complied with, and becomes the agent of the shipper of the goods to receive such payment. He therefore undertakes, in addition to his duties as carrier, to collect for the consignor the price of his goods." And agai.i, in section 390: "When the goods arc so received, the carriei is held to a strict compliance with such instructions; and, if the goods arc delivered without an exaction from the consignee of the amount which the carrier is instructed to collect, he becomes liable to the consignor for it." This is certainly a correct statement of the position and liability of the carrier. He becomes subject to an added duty — that of collection; and, if he fails to perform it, he is liable to the seller for the price of the goods. We have searched in vain for any text-writer's statement, or any decision, to the effect that ni such case no title passes to the purchaser. We feel well assured none such can be found, liut, if this be so, the whole theory that the title does not pass if the money is not paid falls, and the true legal sfai/ts of the parties results that the seller has a remedy for the price of his goods against the carrier. In other words, an order from a seller to a carrier to collect on delivery, accepted by the carrier, creates a contract between the seller and the carrier, for a breach of which by the carrier the seller may recover the price from him. So far as the seller and purchaser are concerned, the latter is liable, whether he takes the goods from the carrier or not, and the order itself is a mere provision for the retention of the seller's lien. While, if the goods are not delivered to the purchaser by the carrier, the title does not pass, that circumstance does not affect the character of the transaction as a sale; and the light of the seller to recover the price from the purchaser, if he refuse to take them, is as complete as if he had taken them, and not paid for them. Thus far we have regarded the transactions between the par- ties in its aspect as a civil contract only : but, when viewed in its aspect as the source of a criminal prosecution, the transac- tion becomes much more clear of doubt. It is manifest that, ^vhen the purchaser ordered the goods to be sent to him C. O. D., he constituted the carrier his agent, both to receive the goods from the seller, and to transmit the price to the seller. OrKKTV. ] iiiulcrtnkcs 1 of payment hipper of the ulcrtakcs, in :onsi^nor tlio "WluMi the t compliance ercd witlioiit ch the carrier :()nsiic hold that C. O. D., of the crim- e conviction The jiulg- L'd, and the n this ii.dict- Stiite V. Carl, 36S; State V. 3b W. Vtt. 53; qncstion pre- ;ating liquors emplation of 10 county of cases) hold ■ distribution state. The ss Company, le consignees were found i the vendors e liquors was io that I'poa STATE V. O NT.II.. 5"3 ilolivcry of them to the csjircss company for transportation tiio title veste'd in the lonxignc-i-s, as in the cast- of a completed and nncundilif^nal sale, then no offense against tlie laws of this state has been committed. If, on the other hand, the sale by its terms could only become complete so as to pass the title in the licjuors to the consignees upon tlie doing of some act, or the fullilling of some condition precedent after they had reached Rutland, then the rulings of the county court upon tlie question of the offense were correct. The liquors were ordered by residents of Vermont from dealers doing business in the state of New Yoi . , who selected from their stock such iiuantitics and kinds of goods as they thought proper in compliance with the terms of the ord rs, put them up in |)ackages, directed them to the consignees, and delivered them to the express company as a common carrier of "oods for transportation, accompanied with a bill, or invoice, for collection. The shipment was in each instance, which it is necessavy here to consider, "C. O. D. ;" and the cases show that the effect of the transaction was a direction by the shipper to the express company not to deliver the goods to the con- si'fnees except upon payment of the amount specitled in the C. O. D. bills, together with the charges for the transportation of the packages and for the return of the money paid. This direction was understood by the express company, which received the shipments coupled therewith. Whether or not, and when, the legal title in property sold passes from the vendor to the vendee, is always a question of the intention of the parties, which is to be gathered from their acts, and all the facts and circumstances of the case taken together. In order that the title may pass, as was said by Morton, J., in Mason v. Thompson, iS Pick. 305: "The owner must intend to part with his property, and the purchaser to become the immediate owner. Their'two minds must meet on this point; and if anything remains to be done before either assents, it may be an inchoate contract, but it is not a perfect sale." The authorities seem to be uniform upon this point and the acts of the parties are regarded as evidence by which the court or jury may ascertain and determine their intent. Benj. Sales, sees. 31 1, 319, note (c). When there is a condition precedent attached to the contract, the title in the property does 5"1 M.-UKS nV ..inMNIS>; TITLK TO IMCUSONAt. PI.. -rKl. . V not puss to tlK- ve.ulcc unlil performance or waiver of the cou- ^yj,^ ,,,, Uu,u,M> there he an actual delivery of possess.on. Beni. Sales, sec. :^2.., note (d). The Vermont cases to the alJe points are referred to in Koherls's Digest, (uo et se<,, ami need not l.e specially revieue.l here. I„ the cases under cnnsiderati-u the vendors of the lu,uors shipped thenr in accordance with the terms of the orders n-ceived, and the mo.le of shipment was as above stated. They delivered the packages of licinors, properly a.ldressed to the several persons or.lerin- the same, to the express company, to he transported hv that compa>^V and delivered hy -t to the consi.MK-es upon fulVdlment hy them of a specified cond.t.on pvecedent. namely: payment of the purchase jM-ice and trans- portation charj,^es, and not otherwise. Attached to the very i,odv of the contract, and to the act of delivery to the carr.er, .v.s'the con.lilion of payment before .lelivcry of possession to the conshrnee. With this condition unfulfilled and not waived, it wouhl be impossible to say that a delivery to thecarrier wa. intended by the consignor as a delivery to the consignee, or as a surrender of the lej^al title. The goods were nUrusted to the carrier to transport to the place of destination named, there to present them for acceptance to the consignee, and if he ..ccepted them and paiil the accompanying mvo.ce and the U-ansportation charges, to deliver them to him; otherw.se to notifv the consignor and hold them subject to h.s order. It is -<'l for the state, and in the text and notes of .t Denj. .Sales [.) Kd.], that we refrain from si^ecific references in sup- port of the conclusion at which we have arrived. These are luUy supported by the decision of the United State.-, district court in Illinois in People v. Shriver, 31 Alb. L. J. 163, 23 l'\d. Rep. 134, a case involving precisely the same qu"' ''on. Treat, J., savs in the opinion: "In the case of liquor i,..i, ped by the defendant to Fairfield by express, C. O. D., the liquor is received by the express company at .Shawneetown as the agent of the seller, and not as the agent of the buyer, and on its reaching Fairfield it is there held by the company, as the agent of the seller, until the consignee comes and pays the money, and then the company, as the agent of the seller, tlelivers the liquor to the purchaser. In such case the posses- sion of the express company is the possession of the seller, and ge' -illy the right of property remains in the seller until the J nt of the prici'. An order from a person in Fairfield to i... .endant at Shawneetown for two gallons of liquor, to be shipped to Fairfieli', C. O. D., a mere offer by the person sending such order to purchase two gallons of liquor from the defendant, and pay him for it when he delivers it to him at Fairfield, and a shipment by the defendant according to such order is practically the same as if the defendant had himself taken two gallons of liquor from his store in Shawneetown, carried it in person to Fairfield, and there delivered it to the purchaser, and received the price of it. It would be different if the order from Fairfield to the dcfend?int was a simple order to ship two gallons of liquor by express to the person ordering, whether such order was accompanied by the money or not. The moment the liquor under such an order was delivered to the express company at Shawneetown it would become the property of the person ordering, and the possession of the express company at Shawrieetown would be the possession of the purchaser— the sale would be a sale at Shawneetown— 5o6 MODES OF OBTAINING TITLE TO PEKSONAL PROPERTY. and if it were lost or destroyed in transit tlie loss would fall upon the purchaser. But in the case at bar the ship- ping of the liquor to Fairfield, C. O. D., the defendant made no sale at .Shawnectown ; the right of property rem lined in himself, and the right of possession, as well as the actual possession, remained in him through his agent. Had it been lost or destroyed in transit -the loss would have fallen on him- self. He simply acted upon the request of the purchaser, and sent the liquor to Fairfield by his own agent, and there effected a sale by receiving the money and delivering the liquor." [Omitting a constitutional question.] The inevitable deduction from what has been said under the first point is, that the respondent, O'Neil, by what he did in respect of the trrnsactions in question, made the express com- pany his agent; and as what was done by such agent in the execution of the authority and instructions directly given by him committed offenses against the statute, O'Neil must be held responsible. That he was innocent of any purpose or intent to break the law, and was unaware that what he did was contrary to law, can not avail him in defense. State v. Com- ings, 28 Vt. 50S. Consult— People v. Shriver, 23 Fed. Rep. 134; U. S. v. Cline, 26 Fed. Rep. 517; Baker v. Boucicault, I Daly, 26. § 89. Goods sold on condition— "Sale or return." DEARBORN v. TURNER. [16 Me. 17; 33 Am. Dec. 130.] Si(f>rc)iic Court of Maine, 1836. The plaintiff brought trover for a cow and calf delivered by the plaintiff to one Nason, who sold them to the defendant within one year. Westox, C. J. — The plaintiff delivered to Nason a cow and calf, for which he took his written promise to return the same cow within a year, with a calf by her side, or to pay twenty-two dollars and fifty cents. We arc very clear that the security of AL PROPERTY. : the loss would : at bar the ship- )., the defendant property rem lined veil as the actual mt. Had it been ave fallen on him- he purchaser, and and there effected the liquor." tion.] :en said under the by what he did in : the express com- such agent in the directly given by , O'Neil must be )f any purpose or \t what he did was e. State v. Com- 4; U. S. V. Cline, 26 : return." R. ] calf delivered by to the defendant Nason a cow and to return the same r to pay twenty-two hat the security of HUNT V. WYAfAN. 507 tlie plain^if vested in contract; and that Nason, having the alternaf return or pay, the property passed to him and he was at liberty to sell the cow. Tibbets v. Towle, 3 Fairf. 341, was a very different case. There the plaintiff expressly reserved to himself the title to the oxen until paid for. The case of Ilurd v. West, 7 Cow. 752, decides expressly that where an alternative exists the title to the property, in a case like this, is transferred upon the delivery. Plaintiff nonsuit. Consult— McKinny v. Bradlee, 117 Mass. 321; Crocker v. Gullifer, 44 Me. 493; Sturm V. Baker, 150 U. S. 328; Schlessinger v. Stralton, 9R. I. ,i7S; Ilotchkiss v. Iliggins, 52 Conn. 205, 52 Am. Rep. 582; Ray V. Thompson, 12 Cush. 2S1, 59 Am. Dec. 187; House v. Beak, 141 111. 290. § 90. Same— Sale "on trial," or "approval." HUNT V. VVYMAN. [100 \Iivss. 19S.] Supreme Judicial Court of Massachusetts, 1868. Wells, J. — Upon the facts stated in this case, there was a bailment and not a sale of the horse. The only contract, aside from the obligations implied by law, must be derived from the statement of the defendant that, if the plaintiff "would let him take the horse and try it, if he did net like it he would return it in as good condition as he got it." This contract, it is true, is silent as to what was to take place if he should like it, or if he should not return it. It may perhaps be fairly inferred that the intent was that if he did like the horse he was to become the purchaser at the price named. But, even if that were expressed, the sale would not take effect until the defendant should determine the question of his liking. An option to purchase if he liked is essentially different from an option to return a purchase if he should not like. In one case the title will not pass until the option is determined; in the other the property passes at once, subject to the right to rescind and return. 5oS MODES OF OHTAIMNC; TITLE TO I'KUSONAL I'KOl'liHTV. A mere failure to return the horse within the time nsreed may be a breach of contract, upon which the phiintiff is entitled to an appropriate remedy ; but has no such legal effect as to convert tlie bailment into a sale. It might be evidence of a determini'.tion, by the defendant, of his option to purchase. Hut it would be only evidence. In this case, the accident to the horse, before an opportunity was had for trial in order to determine tlie option, deprives it of all force, even as evidence. This action, being founded solely upon an alleged sale of the horse for an agreed price, can not be maintained upon the evidence reported. Exceptions overruled. CoNSL'LT— Clare V. O'Donnell, 84 Mich. 338; Pierce v. Conlev, 56 Midi. 552; Mowbray v. Cacly, 40 Iowa, 604; Hartford Sorgluiin Co. v. lUish, 43 Vt. 5jS; Aiken v. Hyde, 99 Mass. 1S3; Witherl)y v. Sleeper, loi M.-iss. 13S; Wilson v. Stratton, 47 Me. 1.20; Cliamberlain v. Smitli, 44 Pa. St. 131; Carter V. Wallace, 35 Hun, 189; Head v. Tattersall, L. R. 7 Ex. 7. § 91. Same— Sale of goods "to arrive." ROGERS V. WOODRUFF. [23 Oliio St. 632; 13 Am. Rep. 276.] S/iproiic Court of Ohio, i8jj. Stonk, J. — The plaintiff sued for the price of eight hundred and eighty-three sacks of salt. The defendant set up as a counterclaim a contract signed by the plaintiff's agent as fol- lows: "Sold J. II. Rodgcrs 1,000 sacks coarse Liverpool and 3,000 sacks fine Liverpool salt at $3.10 per sack to arrive by the 15th November." The counterclaim of the defendant below is based upon an executory contract made October 13, 1S63, by which, as defendant alleges, the plaintiffs .sold and contracted to deliver to him by the fifteenth of November, then next ensuing, three thousand sacks of Liverpool salt. This allegation of the counterclaim is denied by the reply, and is not, in our judgment, supported by the contract given in evidence. lOl'EKTV. time iifirecd tiff is entitled effect as to vidence of a to piiicliase. 2 accident to il in order to I as evidence, cd sale of the led upon the ns overruled. V. Conley, 56 orghuin Co. v. by V. Sleeper, rlain v. Smith, Tattersall, L. light hundred set up as a agent as fol- Liverpool and to arrive by he defendant October 13, tiffs sold and >vember, then 1 salt. This reply, and is act given in ] ROGEUS V. WOODRUFF. 509 Effect is, of course, to be given to the words of the contract, "to arrive by the fifteenth of November," l)ut the ciiiestion is, what effect? They are, as we think, words of condition .ind description only, and can not construed as a warranty that the salt ah?!l arrive. They serve to distinguish the salt which was the subject of the contract from the mass of salt of the same variety found in the market. The salt plaintiffs contracted to sell and defend- ants to buy, was not salt which plaintiffs may then have had on hand, or salt which had previously arrived. It was salt which was to arrive between the date of the contract and the fifteenth of November following. Whether it would arrive or not depended upon contingencies, not absolutely within the control of either party. If it arrived within the time limited, plaintiffs were impliedly bound to deliver it upon the contract. If it failed to arrive within that time no such obligation arose. There was, in that case, no salt which, under the terms of the contract, the plaintiffs were bound to deliver or the defendant to accept. Cases have frequently arisen involving the construction of contracts, in their essential features, not to be distinguished from the contract here in question. It has uniformly been held that contracts of this description— for the sale of goods to arrive— are conditional, the words "to arrive," or other equiv- alent words, not importing a warranty that the goods will arrive, and the obligation to perform the contract by an actual transfer of the property being, therefore, in the absence of other words showing a contrary intent, contingent upon its arrival. Alewyn V. Pryor, Ryan & Moody, 21 Eng. Com. Law, 406; Lovatt v. Hamilton, 5 M. & W. 639; Johnston v. Macdonald, 9 M. & W. 600; Shields V. Pettee, 2 Sand. 263. See, .ilso, Russell V. Nicol, 3 Wend. 112; Benj. on Sales, 470; i Parsons on Cont., title "Of Sales to Arrive," and causes cited. In the present case, it is not alleged that any of the salt referred to in the contract arrived, or came within the control „f the plaintiffs prior to the fifteenth of November, nor is it claimed that its arrival was delayed by their agency. The defendant counts upon the contract as made, and bases his claim to recover solely upon the ground that the plaintiffs, by 5IO MODES OF OnTAININ(; TITLE TO rEKSONAL PIlOrERTy. its terms, stipulated al)solutely, and at all events, to deliver the salt within the time limited. 3. The testimony offered by defendant to show that by the custom of merchants, the words "to arrive by the fifteenth of November," meant '-deliverable on or before the fifteenth of November," tended materially to change the meaiiing and legal effect of the contract, and was clearly incompetent. Judgment affirmed. Consult— Shields V. Peltee, 4 N. Y. 122; Henedict v. Field, 16X. V. 595 ; Rogers V. VVoodrutf, 23 Ohio St. 632; Smith v. Petlee, 70 N. Y. 13; Neldon v. Smith, 36 N. J. (L.) 14S. § 92. Rights of purchasers— Market overt. GRIFFITH V. FOWLER. [.8Vt. 390.] Sufrcmc Court of Vermont^ 1846. Trespass for taking a shearing machine. The case was sub- mitted upon a statement of facts, agreed to by the parties, from which it appeared that in 1S36, the defendant, being the owner of the machine in question, lent it to one Freeman to use in his business as a clothier, who was to pay a yearly rent therefor, and in whose possession it remained until the year 1841, when it was sold at sheriff's sale, on execution, as the property of Freeman, and one Richmond became the purchaser; that Rich- mond, in January, 1S42, sold the machine to the plaintiff, who at the same time purchased of Freeman the building, in which the machine was situated, and took possession thereof; and that the defendant, in February, 1S42, took the machine from the plaintiff's possession, claiming it as his property. The value of the machine was admitted to be fifty dollars. Upon these facts the county court— Hebard, J., presiding — rendered judgment for the defendant. Exceptions by plaintiff. Redfield, J, — The only question reserved in this case is, whether a title to personal property, acquired by purchase at sheriff's sale, is absolute and indefeasible against all the world, or whether such sale only conveys the title of the debtor. OPEUTY. o deliver the that by the fifteenth of fifteenth of neaiiing and octent. ent afliimed. Field, 16N.V. lee, 70 N. Y. GRIFFITH V. K0\VM:R. It :ase was sub- parties, from ng the owner lan to use in rent therefor, r 1 84 1, when propert}' of r ; that Kicli- jhiintiff, who iig, in which thereof ; and nachiiie from jperty. The iHars. Upon ig — rendered itiff. 1 this case is, y purchase at ill the world, debtor. There has long been an opinion, very general, 1 think, in this state, not only among the profession, but the people, that a purchaser at sheriff's sale acquires a good title, without refer- ence to that of the debtor, that such a sale, like one in vmrkct overt in England, conveys an absolute title. But, upon examina- tion, I am satislied that this opinion acts upon no good basis. So far as can now be ascertained, this opinion, in this state, rests mainly upon a dictinn in the case of lleacoi k v. Walker, I Tyl. 33S. There are many reasons why this dictum should not be regarded, if the matter were strictly res Integra. It was a declaration of the chief justice in charging the jury. Cases were then tried by the jury at the bar of this court, as matter of right, and in course, and before t'.ie law of the case had been dis- cussed and settled by the court. In all these respects these trials differed essentially from jury trials at the bar of the higher courts in Westminster Hall, such trials, there, being only matter of favor, granted in the most important cases, and after the law of the cases has oeen fully discussed, and settled by the court. The law given to the jury, in the two cases, will of course, partake something of the character of the respective form and deliberation of the trials. Under our former practice, law laid down in the course of a jury trial, unless when questions were reserved and farther discussed upon motions for new trials, was not much esteemed, even when it was upon the very point in dispute. But especially the dicta of the judge, who tried the case, and who must, of necessity, somewhat amplify the bare text of the law, in order to show the jury the reason upon which it was based, could not be esteemed as anything more than the hastily formed opinion of the judge — mere argument to satisfy some possible, or apprehended, doubt of the jury in regard to the soundness of the main proposition laid down. Such was the diidiiig at the trial refused a nonsuit, and ciiargcd the jury to lind for the plaintiff. The defindants excepted. Tl\e jury toMiid a verdict for the phdnliff, upon which judgment having licen entered tlie defendants removed the record into the supreme court, where the judgment of the court below was alVirmcd. See the opinion delivered by the chief justice (20 Wend. 23). A writ of error was thereupon sued out removing the record into this court. Walworth, Ch. — The simple question presented for our decision ii» this case is, whether the purchaser of stolen goods, who afterward sells them as his own to a bona fide purchaser, is liable to the owner of the goods, in an action of trover for >uch conversion thereof to his own use.? Oiie of the members of this court, upon the argument, supposed the bare statement of such a case was suilicient to enable the court to decide it without further argument; and I thought so too, until one of the learned and very able counsel for the plaintiffs in error assured us he was sincere in believing the action could not be sustained, and referred to a case from the English Term Reports which was apparently a decision in favor of his clients. To understand that case, therefore, and to distinguish it from tlie present, I have found it necessary to bestow a little more time upon the examination of this subject than I should have otherwise deemed it my duty to give to it. It is know n to the professional members of the court, that in tlie market towns in England there are periodical fairs, where property is bought and sold, called market days ; and that by the custom of the city of London, every day except Sunday is a market day, and every tradesman's shop is a market overt for those things in which he usually deals at that place ; and tliat by the common law, a sale in a market overt actually changes the title to the property in favor of a bona fide pur- chaser thereof, even though it has been stolen from the rightful owner. 5 Coke, 833. The only remedy of the owner of stolen property to recover it again, under such circumstances, at the common lawr, was to pursue his appeal against the feloi) e^lG MODF.S OF OniAlNlNG TM I.K TO PF-IlSONAr. IMtOI'KIt I Y. to conviction, and then he was entitled to restitution of his goods, altliongli they had been sold in a market overt. 2 Co. Inst. 714. So, also, if goods were stolen, and the thief iil.andoned or waived them in his fliRht, they v%ere forfeited to tlie crown, or the lord of the manor, unless the ov.ner pro- ceeded upon his appeal to attaint the thief. Toxley's Case, 5 Coke. 109a. But as this proceeding to convict the felon by a private suit was very inconvenient and expensive to the owner of stolen property, the statute 3i Hen. VIII. c. 11, was enacted, by which the stolen goods were directed to be restored to the owner upon his procuring a conviction of the thief, upon an indictment in the ordii:ary way, without the necessity of an appeal. Staunf. P. C. [Ed. 15S3], p. 167. Under this stat- ute, it is thJ settled law in England, that upon the conviction of the offender, the owner is entitled to be restored to his pro])- erty, notwithstanding it may have been sold to a bona fide pinchaser in a market overt, liurgcss v. Coney, Trem. P. C. 315; 2 Co. Inst. 714; J. Kel. 4S. In the case of Ilorwood v. Smith, 2 Term R. 750, relied on by the counsel for the plaintiffs in error to show that they could not be liable for a conversion of these goods which took place before the conviction of the thief in May, 1S33, there had been an actual sale of the stolen property to Smith, the defendant, in a market overt. The title of the owner was, therefore, absolutely divested by this sale, so that Smith, the defend- ant, could not be guilty of a conversion as to him, by after- ward selling the sheep to another person, before the plaintiffs' right to the property had been restored by a conviction of the f<«lon. By a reference to the opinion of Mr. Justice Buller in that case, it will be seen that he puts the decision upon that ground ; and the language put by the reporter into the mouth of Lord Kenyon, that the title to the stolen property was in dubio previous to the sale to the defendant in the market overt, I shall presently show is not considered as law, even in England. The case under consideration, therefore, differs from Ilorwood v. Sriiih in this: that there had been a sale in market overt in that case previous to the alleged conversion, and the title which Smith acquired by that sale was not divested by the subsequent conviction until long afterward, which con- viction was considered as giving the original owner a new title Di'KH rv. UOI TMAX V. CAUOW, 5'7 ution of his vert. 2 Co. ul the til iff ^ forfeited to owner pro- ley's Case, 5 le felon by a to the owner , c. II, was 1)C restored c thief, upon cessity of an der this stat- le conviction 1 to his proj)- a bona fide Trem. P. C. 750, relied on lat they could :h took place lerc had been le defendant, as, therefore, , the defcnd- im, by aftcr- the plaintiffs' iviction of the tice Bnller in on upon that to the mouth opcrty was in market overt, law, even in refore, differs been a sale in ;d conversion, as not divested rd, which Con- ner a new title to the property ; whereas, in the present case, there never Iiad been any sale in a market overt, to convey any title to the defendants which recjuired to be divesled by a conviction. Whether there are any markets overt in Maryland, where the defendants purchased this property from the tiiief, 1 do not know ; but if tlu re are, there w as no attempt to [jrove on the trial that they purchased the property in a market overt ; and tiie learned Jud;;e Hlackstone, "the ICnglish Justinian," says, ill so many wortls, that "if my goods are stolen from me and hold out of market overt, my jjioperty is not altered and I may take them wherever I (liid them." 2 Ul. Comm. 449. See, also, Foxley's Case, 5 Coke, 109a; and Kelh, Laws of William the Conqueror, 73, law 44. The case of i'arker v. Patrick, 5 Term R. 175, depends upon an entirely different principle. The goods in that case were obtained by fraud and not by felony. The sale to the fraudulent vendee was, therefore, not void, but only voidable iit the election of the \endor; and as the vendee had pawned tliem to an innocent person for a valuable consideration, the ])awnee was permitted to hold them as against the owner who had enabled the vendee to obtain property of the defendant, upon the security of property which had apparently been sold to the pawnor, so as to give him the 'egal title thcr>'to. Morcy V. Walsh, in our supreme court (S Cow. 23S), was ckv .led in favor of the bona fide purchaser from a fraudulent vendee, upon the same principle; although it will be seen the chief justice said in that case, that in this state where we had no markets overt, a sale of stolen goods would not divest the title of the owner. The same distinction between the cases of goods obtained by fraud and goods obtained by felony, is noticed by Lord Denman in Peer v. Humphrey, i Har. & W. j8, which is also a direct authority in favor of sustaining the judgment of the supreme court in the present case. Indeed, it is a case upon all fours with this, and makes the distinction, which I have been endeavoring to explain, between Horwood v. .Smith, and the case which we are now to decide. The servant of the plaintiff stole three oxen and a heifer from him ;uid sold the three oxen to the defendant for cash, but the sale was not in a market overt; the thief was afterward taken and convicted, but before that conviction the defendant had sold JlS MODKS OK OIM AININO TITI F- TO I'KIISONAI, I'UUlMiUTY. the cattle to other persons. After tlio conviction of tlie tliicf tlie plaintilf l.rouKht liis action of trover a<,'ainst the ilefcndant, for the previous conversion, as in tliis case, and recovered the vahie of the cattle, Ipon the case heinj,' hrouKht hefore the court of kind's l-ench. the counsel for the defendant cited Ilorwood V. Smith, and n ferred to what Lord Kenyon said as to the property bein- in dul-io hetween the feh.ny and the con- viction. To which Lord C. J. Dcnman replied "that must be a mistake, or the consecpience of the judgment having' been delivered liaslily," and in f,nvin{,' his opinion afterward, he said that in the case then uiuler consideration the property in the cattle never was divested out of the true owner; but that a sale in market overt Rave a prima facie right of i)roperty. Justice Littledale says, "as the defendant did not purchase in market overt, he acpiircd no title whatever in the cattle; that remained in the plai'Uiff, and, therefore, the defendant's subsequent sale of them, amounted to an act of conversion." And Justice Williams said that Ilorwood v. Smith merely laid down that a party by purchasing in market overt accpiired a property in the thing stolen ; but as the purchase in the case they were then considering was not such a sale, no property passed to the defendant in point of law and was never divested out of tlie plaintiff. The verdict, therefore, was directed to stand. It appears by this case, and also by that of Gainson v. Woodfull, 2 Car. & 1'. 41, that the courts in England will not sustain a suit in favor of the owner of the stolen property, either a-ainst the thief or against a purchaser from him, until he has proceeded criminally against the thief for the felony. This practice undoubtedly proceeds upon the ancient common law principle that the civil injury is merged in the felony; but as the Revised Statutes of iSoi, which abolished appeals of felony in this state, also declared that the civil remedy should not be merged in the felony, or in any manner affected thereby, this English rule does not apply to suits commenced here. I R L. iSoi, p. 2C4. In the present case, however, the plam- tiff had convicted the thief before the commencement of his suit. He was, therefore, entitled to recover according to the English practice. I have no doubt that the decision of the court below correct; and the judgment should be athrmed. •UuriCUTY. n of tlic thief the ilcfiiuhiiit, lecovcMfd the f,^ht heforc the L'feii(hiiit citeil skine ; and although I'.ngland has departed from it in one instance in the law of market overt, yet that law has never been adopted in this country, and whenever the (piestion has been presented to American judicial tribunals it has been repudiated. Wheel- right V. De I'eyster, i Johns. 4S0 ; Dame v. Baldwin, S Mass. 518; I Yeatcs, 47S; 2 Kent, Comm. 324. As to the question therefore under consideration, it is wholly immaterial whether the property be sold at public auction by an auctioneer or at private sale by any other individual; the owner's rights can not be affected in the one case more than in the other, nor can the purchaser acquire any greater interest in the one case than in the other. Disposing of or assuming to dispose of another's property without his consent, unless by the operation of law, is a conversion for which this action lies. Everett v. Coffin, 6 Wend. 609; 4 Maule & S. 359; McCombie v. Davis, 6 East, 53S; Parker v. Godin, 2 Strange, S13; Wilbraham v. Snow, 3 Saund. 47 ; 3 Phil. Ev. 121. Nor can even a bona tide pur- chaser protect himself under such a sale. The doctrine of caveat emptor applies, and he is liable to the action of trover by the real owner, notwithstanding his purchase. Williams v. Mctlt '' Wend. iSo; Prescot v. De Forest, 16 Johns. 160. A' ere the rule as contended for by the counsel for the plaintiffs .11 error, a" the felon wotdd have to do to divest the owner of the right iiis property, would be to place it in the hands of :i' auctioneer as soon as stolen, and cause a sale to be made of 520 MODKS OF OBTAIMNG TITLE TO PERSONAL PROPERTY. it; a rule of law that would thus encourage felony and deprive the owner of his property, would be as absurd as unjust. When property is taken without legal authority or the consent of the owner, it is unnecessary for him to make demand before action brought. When he has once consented to part with the possession, in some cases it is necessary to make a demand to show a conversion, but when the possession is wrongfully taken, there is a conversion and no demand is necessary. The Revised Siatutes have not altered the nature of this action in a case like the one we are now considering, as the counsel would seem to suppose from his argument. The stat- ute is intended to make provision relative to stolen property, where it has been arrested from the i'elon, and is in the custody of some l"gal oflker, but does not extend to a case where the felon has delivered the property to an auctioneer to make sale of it for his benefit. I am, therefore, for aflirming the judg- Senator Furmax. — No case like the present has ever been dt>.;ded by this court; and it is of the utmost consequence that an adjudication, having the important bearing that this promises to exercise upon the commercial interests of our country, should not be determined until after a pa' ent investi- gation of the principle in all its bearings, and a due examina- tion of the adjudged cases under which the doctrine is sought to be established, ond of the facts and circumstances under which they were decided. The principle rests in the common law, that a felon does not acquire any title to the goods stolen, that he can not transfer title even to a bona fide purchaser, and that the owner may take his goods which have been so stolen wherever he cm find them. But it was very early discovered, that the commercial interests of the English nation required *^hat some exception should be made to this general rule, an i v was for that purpose that the courts in that kingdom held that the principle did not apply to sales made in market overt ; and that siles made under such circumstances should convey a title to the bona fide pur- chaser, although the property might have been stolen. Even this exception was not found sufiic'ently broad to meet the wants of a trading communily, in which it is absolutely neces- mmmm m m !AL PROPEUTY. HOFFMAN V. CAUOW, 521 felony and deprive fd as unjust, lority or the consent ake demand before ed to pari with the make a demand to is wrongfully taken, •ssary. the nature of this considering, as the gumcnt. The stat- to stolen property, nd is in the custody ) a case where the oncer to make sale aflirming the judg- present has ever utmost consequence it bearing that this al interests of our jr a pa' ent invcsti- nd a due examina- ; doctrine is sought lircumstances under hat a felon does not lie can not transfer lat the owner may •hcrever he cm raid hat the commercial hat some exception was for that purpose the principle did not hat siles made under 3 the bona fide pur- been stolen. Even broad to meet the is absolutely neccs- ] sarv, for the vvdl being of society, that n bona fide purchaser should be protected in his possession of personal property; and the exception was ctill further extended to sales made in public shops in the city of London. It is well to remark here, that in England such markets overt are held, either by prescription or by charter, and in no instance does the charter declare that sales made therein shall be conclusive; but the doctrine has arisen from the exigencies of trade, and has been adopted with a view to protect and favor the commercial interests of that country. But it is said by our courts, and with truth, that the principle of sales in market overt, as it exists in England, has no application to this country. Although this is admitted, yet I may be allowed to express my surprise, that, with our trade and commerce, we should have no similar doctrines or princi- ples to protect it, but that, on the contrary, we should seek to establish a rule which governed England in the infancy of its commerce, which was adopted by its courts at a period when it had no manufactures, and its whole trade consisted in raising wool and exporting it to Flanders to be wrought into cloth, and which was repudiated by those courts at a period when the commercial relations of that country were not of one quarter the importance or value of those of our own country at the present time. My surprise has not been diminished, when I lind that almost every commercial nation, ancient as well as modern, beside our own, had found it necessary to adopt some such doctrine. It was wisely provided by the laws of Athens, that all lawsuits relating to commerce should be carried on in the six months during which ships were not accustomed to put to sea, to the end that they might not lose their voyage by the impediment of legal prosecutions. On the contrary, we, although depending on foreign commerce for our prosperity to a much greater extent than evtv the inhabitants of that ancient state did, hold a mere commercial agent liable in :'amages, at any time withm six years, for an act honestly done r y him in the course of bubiness, and that even without a previois demand before the suit is instituted. In thf Roman state Ulpian speaks of the great privileges granted by the government to merchants, and gives for it the general reason, because navigation is of the greatest service to the state. 522 MODl-S OF onTAIXING TITLE TO PERSONAL PROPERTY. In England, the plaintiff could not recover merely because the good's had been stolen, without that fact having been first judicially ascertained. Hcfore the statute of the 2 i Hen. VIII. , the owner was not entitled to a restitution of the stolen prop- erty, even upon the conviction of the felon on indictment, but could only obtain the same by prosecuting an appeal. After the enactment of that statute, appeals were disused, and were rendered unnecessary, because the court might, on the convic tion of the felon, award restitution; and the courts are now m the habit of doing so. Our own statute (2 Rev. Stat. 747, sec. 33) adopts the English statute on that noint. In England, the action under the award of restitution can not be maintained against any one except him who shall be in possession at the time of the conviction or attainder ; and a demand is also requi- site before the action is brought. 6 Mod. 412. The reasonable inference from this statute, and the manner of proceedmg, seems to be that in the case of stolen property, the title of the plaintiff, so far, at least, as to enable him to maintain trover, is not established before the conviction or attainder; at any rate, he is not before then entitled to a restitution under the statute. 2 Car. .t P. 41, and note. It does not appear from this case that the felon was convicted of the felony charged before this suit was brought; but it does appear that the pro- ceeds of the sale of the goods in question were paid over to him before he was even arrested. Our statute does not author- ize the plaintiff to recover his goods from any one who may at any time have had the goods in his possession, but merely authorizes a recovery in general terms. The statute (2 Rev. Stat. 747, sec. 34) seems to recognize the principle that under certain circumstances, although the property has been stolen, a good title may be conveyed by a person not the owner, or at the least, a title sufficient to protect a bona fide purchaser from an action of trover, for that section provides, that "if stolen property shall not be claimed by the owner thereof before the expiration of six months from the time any person shall have been convicted of stealing such property, the magistrate, sheriff, constable, or other officer, or person having the same in his custody, shall deliver such property to the county super- intendents of the poor, on being paid the reasonable and neces- sary expenses incurred in the preservation thereof, to be appro- pri me Ian his to pn Se bh pr' re( frc pr of of th b3 sh fo h( bi tc ai is C( r c it r c c 1 i 3PERTY. rely because ig been first Hen. VIII., stolen piop- lictment, but peal. After d, and were the convic- are now in Itat. 747, sec. England, the • maintained sssion at the is also requi- le reasonable proceeding, e title of the intain trover, nder; at any jn under the appear from lony charged that the pro- paid over to 3s not author- e who may at , but merely itute (2 Rev. pie that under been stolen, a owner, or at uvchaser from hat "if stolen ;of before the ion shall have le magistrate, ^ing the same county super- ble and neces- f, to be appro- HOFFMAN V. CAROW. 5-3 priated to the use of the poor of such county." This enact- ment is made notwithstanding that by the general law of the land, the owner is entitled to six years within which to bring his action ; and certainly the legislature can not be presumed to have intended to authorize an illegal disposition of another's property. But there is a stronger and more express exception to this general principle, which is to be found in the case of negotia- ble bills of exchange and promissory notes, where possession is prima facie evidence of property, and a bona fide holder can recover upon the same, although a bill or note came to him from a person who had stolen or robbed it from the owner, provided the bona fide holder took it innocently in the course of trade for a valuable consideration, and under circumstances of due caution. Suspicion must first be cast upon the title of the holder, by showing that the paper had got into circulation by force or fraud, before the burden is thrown upon him of showing how he came by it, and what consideration he gave for it. This protection is, for the sake of trade, given to the holder of negotiable paper, who receives it fairly in the way of business; and why the same principle should not be applied to other personal property which passes through the hands of an individual fairly, in the course of trade and without notice, is difficult to imagine. If Lord Mansfield, with his clear and comprehensive mind, felt himself called upon, ex nrccssitatc rci, to depart from the common law, and to establish the prin- ciple above stated in the case of negotiable commercial paper, it can not for a moment be doubted, that if the judges who preceded him had not deemed it necessary to protect the inno- cent bona fide purchaser, by the doctrine of sales in market overt, that the great founder of English commercial law would have extended the same pnnciple to all other property the sub- ject of mercantile transaction. It is the boast of the common law, that it accommodate* itself to the growing wants of a thriving commer. :,..l people;' and it has not been in bravado merely, that this has been put forth • but in the hands of the venerated sages of the English bench, it has been practically applied. What did the age of Ilcnry VIII, when the "Great Abridgment of the Statutes of the Realm" formed a single volume but little larger than a 524 MooKs oi' outaining title to pkrsonal property. pocket bible, know of the law of bills of exchange and promis- sory notes, or of the law of insurance and shipping? Nothing. All this, and a thousand fold more, has been engrafted upon it bv judicial legislation, until it has truly become the colleo':ed wisdom of ages. "/Az /ex scripta est" was not regarded by those sages, as it is too much the case in our day, a sullicient answer to an argument, however cogent, for the establishing a new principle arismg from the wants of the community; but with them it advanced and expanded to meet those wants. A tame subserviency to precedent would have prevented all the improvements in that body of law, which have been the means of rendering it the admiration of the world; and we have great cause for th.-aikfulness, that such was not the course pursued in the country from which we have derived our institutions as well as our law. On the part of the defendant in error, it is contended that the goods in question having been stolen, the delivery conferred no authority on on the plaintiffs in error to sell them ; that such sale was a conversion; and that the payment of the proceeds to the felon, although without notice or knowledge of the felony, does not discharge the plaintiffs in error from responsi- bility to the right owner, who, it is insisted, has a right to reclaim }iis property, and to hold any one responsible who has assumed the right to dispose of it; and that the fact of the plaintiffs in error being auctioneers does not vary their responsibility. On the argument of these points a number of authorities were cited; in the examination of which a short time may not be unprofitably spent in order to ascertain what were the facts and reasons which led to their decifiion. Among the cases on which the counsel for the defendant in error relies to sustain the recovery against the plaintiffs in error, is that of Peer v. Humphrey, 3 Adol. & E. 500, in which the property was stolen and sold to the defendani who was a bona fide pur- chaser. Two days after the sale, the plaintiff having dis- covered his property in the defendant's possession gave him notice that it had been stolen from hiij., and demanded posses- sion, which was refused. Three months after this notice and demand, the defendant sold the property in market overt and appropriated the proceeds to his own use. The thief was con- victed of the felony on the prosecution of the plaintiff; and PERTY. md piomis- Notliing. rafted upon ic collcc':eil egarded by a f.utlicieiit tablishing a lunity; hut wants. A iited all the 1 the means ; have great : pursued in ions as well [led that the onferred no I ; that such lie proceeds nlge of the im rcsponsi- it to reclaim las assumed plaintiffs in ibility. On orities were may not be he facts and le cases on s to sustain : of Peer v. roperty was la fide pur- having dis- m gave him nded posses- > notice and ;t overt and ief was con- aintiff; and HOFFMAN V. CAUOW. -1-> afterward, the plaintiff brought an action of trover and recov- ered against the defendant. Here it will be noted that the property having been sold by the defendant in market overt, the plaintiff could not follow it up, and could not recover of any other person than the defendant. No one, however, would feel much reluctance in sustaining such a judgment, for the defendant was possessed of the property at the time of the demand, and disposed of it three months after he had received notice that it had be n stolen. So if the auctioneers in this case had sold the goods of Carow, after they had notice of the felony, and after he had demanded the goods from them, and had then paid over the money to the felon, it would be a parallel case with that cited. The next case is that of Stephens v. El wall, 4 Maule e con,-.e of the opinion of the court, -.ether w.th s.milar one in S Cow. 2,vS, which was .n a ease of fraud a n t of felonv, seem to have formed the bas.s of he -^-- - isions of- that tribunal. And the next sncccedn.. case ,s first one that applies that principle n. its broadest sense to the '"^: WmUmH. Merle, u Wen.l. So, the facts were these: N embe; r.S.„ the master of a tow-boat, ^^^^^^/^ four barrels of potashes from a warehouse u. A bany, nd d s covering his mistake when in New ^'orl<, dehvered them to t S of the agents of his principals, who took them to an pec'or's office on the third of November foUowm,, obta.ned c Uncate of inspection, and on the sixth of the same month so 11 m to the defendant, a produce broker, who purchas d h m or a Mr. Patterson, at a ta,r price, and rece.ved the n pector's certilicate. On the tenth of November the defend- "uto k the ashes from the inspector's office, and sh.pped them : order of his principal. About the first of September, ,n he following year, the plaintiffs demanded the ashes of the :^J:iant, ;ii refused to account for them, ^y^ ^^ purchased and paid for them a y--' P'?-^''?^. ^^'^^ ^"^",t The circuit iudge, Edwards, intimated h.s opm.on that .f the In la hid aVired the property bona fide by P"-''-- - . e re-ndar course of his business as a produce broker, and had d posted of the same bona fide, pursuant to the n.struct,ons o£ h principal, before suit brought, the action won d not be. He 'howeve .refused to nonsuit the plaintiffs and the ^-y, "e his dir;ction, found a verdict for the P'-^-ff. or - v-Uue of the ashes, and interest. The case was brought to the u erne court for revision; and that court, in follow.ngup the general principles mentioned in the cases of Mowty v Wafsh ndofEvlrett v. Coffin, decided that the defendan 'I able, and that the owner of property can not be d.ves ed of t but by his own consent, or by operation of law, and that the pu ha'er acquired no title. The circuit judge took such a vi w of the facts and of the legal principles wh.ch should be I led to them, as seems to commend itself to our comn^on sT of U-tice; and such an one as the eqxuty of the ca e ; d seem to require-which was to leave the plau.t.ffs to >PEm Y. IIOKI.MAN V. CAKOW, 5.>' jntallv men- ;thcr with a [ fraud, and siibseci'icnt g case is tlie sense to the were these: istake, took iiy, aiul dis- •ed them to ; them to an ng, obtained same month lo purchased received the •, the dciend- shipped them September, in ashes of the ying he had the demand. )n that if the purchase, in okcr, and had nstructions of ,ouUl not lie. and the jury, intiffs for the brought to the I following up of Mowry v. the defendant ot be divested law, and that Igc took such a lich should be ) our common ity of the case le plaintiffs to tlicir remedy againat those wiio actually converted and sold (licir proi)iMty, and had appropriated the proceeds to their own use; hut not allow tiiem to sustain an acti(Ji) against an inno- cent party wiio was ovily the agent for the purpose of transmit- ting the propiMv from the hands of those ulio had so converted it to tliose of a third person. Not tiiat there was any doulit about the general rule of law, as laid down l)y the court in reviewing the case ; but because the defendant was in a busi- ness well known to the commercial community as an agent, a produce broker, transacting that business bona fide; and because the great and important interests of the community required that tliose men sliould not be rendered liable in dam- ages for acts done by tiiein without the intent of committing a violation of law. The reasonable presumption would be that if such a doctrine should be sanctioned by the higher courts, and thus becoine the settled law of the land, these agencies would be broken up, to the great annoyance and expense, as well of the merchants as of the planters; thus affecting not only the commerce but the agriculture of the country; or at tiie least be the cause of creating very serious impediments in tile way of the transaction of that business which has been for several years past peculiarly appropriated by that class of men; and which constitutes a very large amount of the whole busi- ness of the country. The only ground upon which a party should be held liable is that he has the property or its value in his possession, or has with knowledge or under notice, illegally disposed of it; and not by reason of having been the mere conduit for its transmission from one to another, and that with- out notice or knowledge of any claim having beon set up to the property by a third person. I am inclined to think there is a slight mistake in the case as reported in relation to the doctrine held by the circuit judge; in which he is made to intimate that if the defendant had, in addition to the other circumstances by him stated, "disposed of the property bona fide, pursuant to the instructions of his principal before suit brought, the action would not lie;" and that he intended to have been understood as intimating that if the defendant had in addition to those other circumstances, disposed of the property bona fide, pur- suant to the instructions of his principal before notice, or demand made, the action would not lie. That would make the doctrine 53^ MODKS OK OIVIAIMNG TITI-K TO I-EUSOXAI. IMIOI'KIITY. conform to that dediiciblc from thv Kntjiish cases, and to what I believe to have liceu tlif law in lliis state liefore tlie case of Mowry v. Walsh, S Cow. 23S, which was decided in 1S2S, nlthou^'h I can not see tliat the decision of that case, viewed in a proper light, niiiitales ajjjainst that rule. This disposes of liie adjud^'ed cases cited on the arputncnt of this cause. Tiiere are. however, two cases referred to hy the learned chief justice in deliveriuf,' the opinion of the supreine court, which should here be noticed. The first is tliat of Mowry v. Walsh, above mentioned. There goods were obtained from the plaintiffs by means of a forged recommenda- tion, and a promise to pay whatever amount the plaintiffs might let him have. After thus obtaining the goods, the party obtain- ing the goods took them to Lansingburgh and sold them to the defendant for considerable less than the prices which had bccu charged him by the plaintiffs at the factory. Tiie deftudanfs clerk, however, testified that the price paid was a fair one. The plaintiffs aftcrsvard demanded the goods, and the defend- ant refused to surrender them, and an action of trover was brought. The circuit judge held that the goods were obtained fraudulently, but not feloniously, and the defendant having bought them bona fide without notice of the fraud, the plaintiffs could not recover; and a verdict was rendered for the defend- ant. The case was brought before the supreme court and that court supported the decision of the circuit judge, and held that it was a case of fraud, and not of felony or larceny, and that the finding of the jury and the testimony established the fact that the defendant purchased withe ut notice of the fraud ; that although as between the original parties to the contract, the sale was void in consequence of the fraud, yet if that original fraudulent purcliascr afterward sold the goods to a bona fide purchaser without notice of the fraud, the property passed, and the court would protect him in the possession thereof. Although this decides the whole case which was brought up for examina- tion, the court also lay down the general principles of law as applicable to cases of stolen property — that if the goods were taken feloniously no title passed from the owners and they might pursue and take their property wherever found; that such is the law in England unless the goods are sold fairly in market overt, and that having no such market here, the sale can : KIITY. n\ to what t> case of (1 ill 1S2S, viewed ill •{TlllUCIlt of to by the ^ supicme is tliat of )ods were ommeiuhi- itiffs nii_ person who claims to be the owner, does not show that he has taken any pains, by advertisement or otiierwise, to caution the community that the property in ques- tion has been feloniously taken from him ; but permits them to receive it from the felon, and to pass it away to other hands, without the slightest intimation that the title does not accom- pany the possession in that as in all other cases. What reason c;in there be that the principle which the courts have with so much justice adopted with reference to stolen bills of exchange and promissory notes should not be applied to other perronal property, equally the subject of mercantile transactions? Why not here as in the cases of those evidences of debt, hold the chiimant bound to exercise due diligence in giving the public notice of his loss ; and leave the fact of proper diligence on lii' ■side and of due caution on that of the defendant, for a jury to determine from all the circumstances of the case? Is it I ecaust in the case of bills of exchange and promissory notes, ■1 53S ISIODES OF OBTAINMXG TITLE TO PERSONAL PROrERTY. the indorsement passes the title? Then equally effective is the possession of goods to evidence the title in all casts, except where the courts have interposed and held innocent parties liable because they had done that which they believed was legal and right ; and had no means of knowing to the contrary but by that information. It is also urged on the part of the plaintiffs in error, and with strong reason for its su]5port, that although possession may not always be conclusive evidence of property in merchandise, yet whe'" merchandise is abroad in a foreign country the exigency o, f ommcrce requires that possession shoidd be considered as conciujive evidence of property in all cases, wher? the purchaser acts in good faith, and Aithor.t notice that the goods do not belong to him who is in the possession of the same. This it would seem should be the rule, as the title of personal prop- erty passes by the delivery ; and in two thirds or even three fourths of all that is passed through the millions of hands both in this country and Europe, no other mode of passing the title is used. The public interest demands that such a rule should be adopted, or publir. notice should be required in all cases of the loss by felony of personal property. Otherwise, I can not divest my mind of the strong impression which it has received that a blow will be struck at the commercial interests and pros- perity of our state, the extent of the evil effects of which it will be difficult to conceive. All who are in the least acquainted with the commercial relations of orr country know that they are very extensive and important both with England and France and other countries, amounting to many millions of dollars in the course of a year. Suppose for an instance, that a man in either of those European countries should obtain goods by felony — for there are bad men all over the world — and consign them to a mer- cantile house ui New York, one of the most respectable firms in that city, .vith directions to sell on his account and remit him the proceeds; and they, without any knowledge of the manner in which the goods have been obtained, receive and dispose of the same, and remit the avails as directed ; and that some months after comes another person and claims those goods as his property, and in order to be parallel with the case under advisement, without saying a syllable to those merchants )rERTY. HOFFMAN V. CAROW. 53S> 2ctive is the asos, except :ent parties ;cl was legal :ontrary but or, and with ion may not landise, yet he exigency )nsidered as le purchaser tods do not le. This it sonal prop- ■ even three hands both iiiig the title rule should all cases of jc, I can not has received its and pros- which it will : acquainted w that they 1 and France )£ dollars in ler of those y — for there m to a mer- ictabie firms t and remit edge of the receive and ;d ; and that :laims those /ith the case 50 merchants ill Xcw York, and without ever having given any notice to the world of his loss, he commences an action of trover against them. Would this or any other court hold them liable in that action? or would not a sense of justice and equity revolt at such a proposition? If such an action should be sustained, iuul a recovery had against such firm under such circumstances, no mercantile commission house could thereafter exist in the citv of New York. Baltimore, so far as this question is affected, is a foreign city, and the state of Maryland a foreign slate. The several states of the Union, it is crue, have con- federated for their mutual safety and good government, but in all matters which relate to their internal police, legislative and judicial, they are as much foreign to each other as if situated oil cither side of the Atlantic; and, therefore, in determining this important question, it should be done with a reference to the effect it is to have upon our foreign commercial relations. As 1 have before remarked, there has been no case, like the present, judicially determined by this court. Saltus v. Everett, 20 Wend. 267, was not the case of property sent to an agent to be disposed of, and the proceeds remitted, but was the case of property converted here by a principal, between which two cases there is, in my judgment, a wide distinction, and involves the same principle as that of Everett v. Coffin, 6 Wend. 605. Having thus passed through with such an examination as I have deemed it my duty to give this matter, I have to add that the rule, as attempted to be established on th.. part of the defendant in error, is in my opinion too broad. Although I admit that the government is bound to assist the rightful osvner of property in recovering the possession of it when it has been unjustly or feloniously taken from him; yet I insist that this should not be at the expense of an innocent person, without some notice, and especially in the present case, where the defendant in error kept the offender in hrs employment, in which he was at the time of the felony, although he had no charge of the goods; that, however, only serves to free him from a breach ol trust, and is introduced for the purpose of showing it was a felony. ihe principle applies here with [cd the substance of tlic things in question, their character, use, or ownership, to the injury of tlie real owner. The fjround of tlie action used for the purpose is not the actual possession of the movables, but some wrongful act relating to them: a tortious refusal to deliver them, a tortious taking, or else their wrongful conversion ; which last is presumed upon the refusal to give them up, and which is proved t)y a sale without authority. According to Lork Coke, in the oldest leading case on this head, which still preserves its authority. Isaac v. Clark, i Bulst. 313, "there must be an act done to convert one thing into another," and a converting into money by sale has always been held to be within this deiinition. The very recent English case. Peer v. Humphrey, 2 Adol. & E. 495, recognizes this same doctrine. In the argument before us, it was very strongly urged that a rule of law, thus charging mere agents, would work great public injury as well as private injustice; as it would extend to common carriers, ship masters, and others, through whose hands goods feloniously or wrongfully obtained might pass. There may be some cases going to that length, but they are not, in my judgment, within the principle or the policy of the rule, nor are they included in the older decisions, as, for instance, in the one just cited from Bulstrode. I can not think the law charges one who had accidentally a temporary posses- sion of goods without claim of property, and with which he has parted before demand. It requires a wrongful taking or conversion of the thing itself to make the transaction tortious. The auctioneers who have sold the goods now in question have made such an unauthorized conversion, and must be answer- able for the value. In this instance the rule falls hardly upon innocent and honorable men ; but looking to general considera- tions of legal policy, I can not conceive a more salutary regulation than that of obliging the auctioneer to look well to the title of the go. Is which he sells, and in case of feloniously obtained property, to hold him responsible to the buyer or the true owner, as the one or the other may happen to suffer. Were our law otherwise in this respect, it would afford a facility for the sale of stolen or feloniously obtained goods, which could be remedied in no way so effectually as by a stat- ute regulating sales at auction, on the principles of the law as we now hold it. Ol'KKTY. HOFFMAN V, CAKOW. ^3 ^stion, their real owner, jt the actual :t lelatiiifi; to IS taking, or HiiiHcl upon d t)y a sale I the oldest ;s authority, act done to into money lition. The Adol. & E. urged that a work great \'Ould extend ough whose might pass, but they are jolicy of the ans, as, for :an not think arary posses- th which he ul taking or ion tortious, [uestion have t be answer- hardly upon al considera- lore salutary look well to )f feloniously buyer or the en to suffer, uld afford a ained goods, as by a stat- f the law as 2. It has been maintained with great ability that the rule thus stated, though admitted to be true as to goods tortioiisly olitained, does not apply to goods feloniously taken, and that damages for the conversion of such goods can he recovered only after conviction of the felon, and only from the person converting or refusing to deliver the goods after that time. In the present case, the felon was convicted, but the conversion and sale had iaken place before the conviction. This ground was probably not taken before the supreme court, as it is not noticed in the opinion delivered in that court. I am not quite clear whether this may not be the existing law of England, and whether an action like the present could at any time be maintained there. By the ancient common law a person robbed could regain his property only by an appeal of larceny after conviction. The statute, 3i Hen. VIII., gave the party robbed a right to immediate restitution after conviction. Several decisions upon the act gave it a construction in con- formity with the old law of appeal. It was strictly held that the civil action was merged in the felony. After conviction of the felon, the stolen goods could be reclaimed even if sold in market overt, and whoever sold them after that date was deemed a tortious converter. But it has been expressly de- cided that the owner who had prosecuted the thief to convic- tion, can not recover the value of his goods from one who bought them from the thief, and sold them again before con- viction, even with notice. 2 Term R. 750. In the words of Chief Justice Best, in another case (Simpson v. Woodhert, 2 Car. & P. 41): "The law is this: you must do your duty to tlie public before you seek a benefit to yourself; and then there is no necessity for a civil action. The decisions, says he, go not only to the case of an action against the felon, but also against persons who derive title under him. If such actions could be maintained, there would be no criminal prosecutions." The authority of these and similar decisions has been much shaken, and certainly much narrowed in their application, by the case of Peer v. Humphrey, 2 Adol. & E. 495, decided in 1S3-. There the court of king's bench held, that in trover for oxen feloniously sold by a servant, their value might lie recov- ered from the bona fide purchaser who had sold them again before conviction. In this case the authority and reasoning of 544 MOPES 0|. OIITAINING TITLE TO I'EUSONAL PROPERTY. Lord Keiiyon in 3 Term R. 750, were overruled by his suc- cessor, the present Chief Justice Denman. But in my opinion we are not called upon to reconcile these cases, or to decide between them, for whatever may be the 'aw of England, it is quite clear that these peculiar exceptions to the general principle of the law, obtaining on special grounds of policy, have no application within this state. Not only has the foundation of the doctrine been removed by the abolition of appeals of felony and of the former statutory provision of restitution, but a contrary doctrine has been expressly substi- tuted. The English law established the universal rule that the felony excluded or suspended the civil suit until after convic- tion. Our Revised Statutes enact thus (p.nrt 3, c. 4, tit. i): "The right of any person injured by felony, shall not in any case be merged in such felony or be in any manner affected thereby." The first part of the section may, perhaps, by a strict construction, be confined to the action against the felon himself, which was formerly held to be merged in the felony ; but the concluding words have no force or effect unless they extend to cases like the present. Chief Justice Best, as just cited, says: "The decisions go not only to the case of an action against the felon, but also against persons claiming under him." As the action against the felon is restored by the first part of the section, so that against persons claiming under him must be comprehended under the final words: "The rights of any person injured by any felony, shall not be in any manner affected thereby." The abrogation of the whole pol- icy of the English law on this head, removes the only exception before known to the general right of the real owner to follow his property and recover its value in any hands whatever. But we need not rest merely on the general terms of this enactment. The whole policy of the statute of restitution upon which the English decisions stand, has been altered in our statute. Instead of requiring a conviction before stolen goods are restored, lest (as Hale and Blackstone say) "felonies should be made up and healed," our Revised Statutes direct that " upon receiving satisfactory proof of the title of any owner, the magistrate who shall take the examination of an accused person, may order the same to be delivered to such owner." And again: "If stolen property shall come into the custody ^ I. PEllTV. HOFFMAN V. CAKOW, 545 jy his 8UC- ncile these be the 'aw ceptions to ial grounds fot only has le abolition )rovision of jssly substi- | •ule that the fter convic- ;. 4, tit. i): II not in any ner affected irhaps, by a ist the felon the felony ; unless they Best, as just i case of an ns claiming stored by the liming under rds: "The lot be in any e whole pol- iily exception ner to follow latever. But is enactment, on which the our statute. I goods are lonies should ;s direct that f any owner, >f an accused such owner." -i the custody ^ 35 of any magistrate, upon satisfactory proof of the title of any .jsvncr thereof, it shall be delivered to him." Finally, the l',ii'4lisli statute is in substance re-cnactcd, with this remarkable adilition: "If the property shall not before have hetn dcllv- ncd to the owner." These several provisions, taken in con- luction with the abolition of appeals of felony and of the merger of the civil remedy in the criminal prosecution, show, 1 think, conclusively, that the English doctrine on this head, iven in the more limited sense as laid down by Chief Justice Denman, has no application in this state. If this view of the subject be correct, our own legislation liere affords another instance of the gradually but increasing respect for the rights of original ownership against all other claims (even that of an innocent and apparently lawful posses- sor), which has marked the advance of civilized life. Chan- cellor Kent (2 Kent, Comm. 320) has drawn a striking and pir.losophical outline of this advance. He has shown how, in the earlier ages of the Roman, the German, and the English law. the rights of the first proprietor of things movable, when divested of his possession, had little preference over that of any other possessor under color of right; and how the respect for ilie rights of property kept on increasing in efficacy with social improvement and the corresponding advance of the law, from rudeness to refinement. 3. It has also been urged before us that where merchandise is abroad in a foreign state, the necessities of commerce require tiiat possecsion shall be regarded as conclusive evidence of property in respect to a purchaser who acts in good faith. It has also been argued that the cause of action arising in Mary- land, where the goods were sold, the decision of this cause might be governed or modified by the law of that state. The law of England, as well as that of all those states where the common law forms the ground work of the local jurisprudence, considers all persona' actions, whether ex contractu or ex delicto, wherever the cause of action arose, as transitory, and subject to the law of the jurisdiction under which the parties are litigant. It is a principle of the same law, pervading the jurisprudence of almost all civilized countries, that "movables are governed by the law of the domicil of the owner." Lord 546 Monns ok ohta.n.no -nrL. vo pkusona.. puo-kktv. T.ouKhborouRh has stated the rule thus: "It is a dear propo- S that pLonal property has no U.cality •' -luch pa ch - callv sou.uhuti maxim he explains to mean, that persona p" perty ' 'is subject to the h.w which governs the person ol C:Zr, both in respect to its disposition and Us nmsm.- ^ ::^r •;: ^i^f fU cof cts, the ja^^^^^^^^^ of contract is recognized as to the force and effect of the con t^t^; becau:; it is presumed to enter into the c^ns.den. on o the parties, to form a part of the bargau., and to .n e - nvet its language and meaning. In other respec s, r.ghts as to ™al property are seldom governed ^^y ^»- '" -' ^I ^' ° of the jurisdiction where it may accidentally be, whdst the llr dwills and the suit is brought elsewhere ^ovv, ths •snot a case of contract, but a question of ownersh.p and co - VrsVon. The same rule, therefore, must be apphed to the ,aL o thes goods in IJaltimore as if they had been sold n. A bany Th 'r: may pos.bly be cases where the «ame --- o ^u^t. and Dolicv which give authority in our courts to the forc.<,n ol con^Lts may'give similar weight to U. le. re. s.Ue so as to make the foreign law of the temporary locality of the mm ir vary that of the owner's domicil. The extent or the ^t^tio s'of such exceptions to the general 1- we are n^ now called upon to decide. We have no evidence that the Lc'l aw of Maryland differs as to th.s matter from our own. The nled fact, that the goods were sold in another state, can have no eHe 1 1^ change or vary those rights of personal prop- erty which are prescHbed by that which, in th.s case, >salke a e irw of the owner's domicil, and of the jur.sd.ct.on m wh.ch he ass-ts these rights. The judgment of the supreme cou.t ■^' Orth: ;^:rn being put, ShaH this judgment be reversed P the members of the court divided as follows: In the afl^rmative-Senators Furman, Hawkms, Hull, May "tn' rteTat'ive-The Chancellor, and Senators Clark, Edwards Hu'nt Hunter, Jones, H. A. Livingston N.cholas. Paige pick, Powers, Skinner, Spraker, Sterling, Verplanck Wager — 16. ^Mi IMAGE EVALUATION TEST TARGET (MT-3) v. ^ 4^ A #5 & %' 1.0 I.I 11.25 1^ 150 M 32 M 2.2 2.0 1.8 U IIIIII.6 Photographic Sciences Corporation ■y 23 WEST MAIN STREET WEBSTER, N.Y. 14580 (716) 872-4503 ^tm CIHM/ICMH Microfiche Series. CIHM/ICMH Collection de microfiches. Canadian Institute for Historical Microreproductions / Institut Canadian de microreproductions historiques COLE V. BERRY. 547 Whereupon the judgment of the supreme court was affirmed. Consult.— Saltus v. Everett, 20 Wend. 267, 32 Am. Dec. 541 ; Wilson V. Crockett, 43 Mo. 2i6; Velsian v. Lewis, 15 Oreg. 539, 3 Am. St. Rep. 184; Levi V. Booth, 58 Md. 305, 42 Am. Rep. 33:; Dame v. Baldwin, 8 Mass. 51S; Roland v. Gundy, 5 Ohio, 302; Burton v. Curyea, 40 III. 320; Brower v Peabodj, 13 Is. Y. 121. :■:-! §94. Same- Eights of third parties. COLE V. BERRY. [42 N. J. Law, 30S; 36 Am. liep. 511.] Supreme Court of New Jersey^ 1880. Depue, J. — Cole sued Berry, in trespass, for seizing and selling a sewing machine. Berry, as one of the constables of the county of Hunterdon, seized and sold the machine under and by virtue of a writ of attachment issued out of the justice's court, against one Gustave VVct/el. Cole was the owner of the machine. He entered into a contract for the sale of it to Wetzel, the terms of which appear in the following agreement in writing: — "Annandale, June 26, 1876. "Whereas, the subscriber have this day purchased of Josiah Cole one Domestic sewing machine, for the sum of tifty-tive dollars, for which I have given fitteen dollars in cash, and my note tor forty dollars, payable in installments of live dollars a month, and 1 have allowed him to take the machine in his possession : Now, it is agreed that the said machine is to be and remain the property of the said Cole, and be subject to his control, until the same is actually paid for in cash. "Gustave Wetzel." Cole delivered the machine to Wetzel, under this arrange- ment, "and it was in the possession of the latter when it was levied on by the defendant. For the $15, which, by the agree- ment, was payable in cash, Wetzel gave a due bill, payable in eight days. For the balance of the contract price, Wetzel ga^ve a note, payable according to the terms of the agreement. Neither the due bill nor the note has been paid. On the trial, 54S MODES OF ORTAIXING TITLE TO PERSONAL PHOPERTV. the court gave jiul-ment for the defendant, on the ground that the written agreement was fraudulent and void, and that the plaintiff had no title to the machine when it was attached. The agreement is inartistically drawn. It leaves it in some doubt whether, in legal import, the paper is to be considered as a "mortgage, or convevance intended to operate as a mort- gage." within the thirty-ninth section of the Act concerning mo'rtgagcs (Rev., p. 709), or as containing the terms of a con- tract of sale between the parties. The court below evidently regarded it in the latter aspect, for there is no mention in the ca"e of the filing or non-filing of the instrument as a chattel mortgage. Taken in connection with the other evidence, the transacrion is susceptible of such an interpretation, and I will adopt that construction for present purposes. I do so the more readily as either construction presents for examination the soundness of the reason on which the judgment of the court was base<:l. The legal proposition which entered into the judgment below is either tliat a contract for the sale of a chattel, followed by delivery to the vendee, passes title to the vendee, although it be one of the terms of the contract that the title shall not pass until the contract price be paid, or that such an agreement is, fcr sc, fraudulent and void, as against creditors of the pur- chaser. Neither of the foregoing propositions contains a correct ex- position of the law. No rule of law is better settled than that, in the sale of chattels, property will pass or not, according ta the intention of parties, as expressed in the contract of sale. "It is a general rule that when a man hath a thing, he may condition with it as he will." Shep Touch. 118. Mr. Ben- jamin states the general rule in this language: "Where the buyer is, by the contract, bound to do anything as a condition, either precedent or concurrent, on which the passing of the property depends, the property will not pass until the condi- tion be fulfilled, even though the goods may have been actually delivered into the possession of the buyer." Benj. on Sales, 223. Payment of the contract price is one of the most usual con- ditions on which the transfer of title depends. It is generally a condition to be performed simultaneously with delivery. If such be the contract, a waiver of the condition may be pre- OPERTY. frround that ind that the tached. s it in some ; considered ; as a mort- t concerning^ ms of a con- 5\v evidently Mition in the as a chattel ividence, the , and I will 3 so the more mination the of the court gment below followed by ;, althouijh it hall not pass is^rcement is, 1 of the pur- a correct ex- ed than that, according ta tract of sale, ling, he may ?. Mr. Ben- " Where the 3 a condition, assing of the til the condi- been actually on Sales, 223. )st usual con- t is generally delivery. If may be pre- COLE V. BERRY. 549 sumed from an unconditional delivery, without exacting pay- ment, and in the absence of explanatory proof, the prope-ty will vest in the purchaser. 2 Kent, 496 ; Smith v. Lynes, i Seld. 41; Carleton v. Sumner, 4 Pick. 516; Smith v. Dcnnic, 6 Id. 263-266; Farlow v. Ellis, 15 Gray, 229. But where the deliv- ery is conditional, as where the parties have stipulated that, notwithstanding delivery, the title shall not pass until the con- tract price be paid, property in the chattel will not pass to the vendee until payment be m.ide. The vendor's title is not divested by a conditional delivery, if the terms of sale, with respect to payment, be not complied with. D'Wolf v. Babbctt, 4 Mason, 2S9; Copeland v. Bosquet, 4 Wash. C. C. 5SS; The Oriole, I Sprague, 31 ; Parsons on Contracts, 537. In Ballard V. Burget, 40 N. Y. 314, Grover, J., styles such a contract an executory agreement that the title shall pass on the happening of the stipulated event — the payment of the price. Mr. Story distinguishes it from a purely executory contract in this partic- ular: that an executory contract is absolutely to sell at a future time, and a conditional contract is conditionally to sell. In the one case, he says, the performance of the contract is suspended, and transferred to a future time ; in the other, the very exist- ence and performance of the contract depend upon a contin- gency. Story on Contracts, sec. 246. As between the immediate parties to the contract, the prin- ciple above mentioned is inflexibly^ adhered to. There is some diversity of views with respect to its application as against creditors of the vendee and bona jide purchasers from him, for full value. In some of the courts, it has been held that con- ditions in contracts of sale, that title shall not pass until pay- ment of the purchase money, • are not good as against those laiming under the vendee as creditors or purchasers, when possession is delivered to the vendee. Another class of cases liold that, while conditions of this character are valid as against the creditors of the vendee, they are invalid as against bona Jide purchasers from him. These decisions are the outcome of the doctrine that upon a sale of chattels, possession inconsistent with the actual title is, per sc, fraudulent and void, as against creditors and bona Jide purchasers. This doctrine is not in force in this state. Our courts have held that a possession s\ liich is consistent with the agreement between the parties is 550 MODES OK OHTAINIXG TITLE TO TERSONAI. PROPERTV. not of itself, actually or constructively fraudulent. Runyon v. Groshou, I Bcas. S6', Broadway Hank v. McElrath, 2 Id. 34; Miller ads. Pancoast, 5 Dutcher, 250. A vendor who delivers possession of chattels to his vendee, under an executory con- tract that the title shall pass on payment of the contract price, mav forfeit his property by conduct which the law re-ards as fraudulent, as where, in addition to possession, he clothes the vendee with an apparent title, on the faith of which third per- sons are induced to act in giving credit or in becoming pur- chasers, or where he knowingly permits the vendee to exercise -,cts of ownership over the property, inconsistent with only a qualified right of possession, to the injury of others. In such cases the question of fraud becomes one of fact, to be decided bv a iury upon the circumstances of the particular case. But where the case presents no other features than that the vendor has entered into a contract of sale on credit, and has delivered the -oods to the vendee, upon an agreement that they shall remain the property of the vendor until the payment of the purchase money, the property in the goods remar in the ven- dor until payment be made, without being subject to execution at the suit of the creditors of the vendee, and the title of the vendor is preferred to that of purchasers from the vendee. _ Possession by the vendee, under a contract of sale containing a stipulatior, whether verbal or in writing, that the property shall not pass until payment of the contract price, is not fraud- ulent and creditors of the vendee can not seize the property under execution until the condition be performed. Bump on Fraud. Con. 150. In Herring v. Ho,.pock, 15 N. Y. 409, the plaintiff delivered a safe to Brooks &. Hopkins on a contract of sale as follows: ^^^^^^^ ^^^^^^ February 6, 1853. uReceived from Silas C. Herring, one Salamander patent safe No 4910, delivered to us this day, under a bargain for the sale thereof, and for which we have given our note at six months for $335. And it is expressly understood that Herring neither 'parts with, nor do we acquire any title to said safe, until said note is fully paid; and in case of default in the pay- ment thereof at maturity, said Herring is hereby authorized to enter our premises and take and remove said safe, and collect all reasonable charges for the use of the same. "Brooks & Hopkins." 'KRTV. Runyoii v. , 2 Id. 34; 10 delivers intory con- ract- price, re Mete. 68. Hnt where the vendee is in possession under a con- ditional contract of sale, he has no property to co:pvcy to a purchaser, and the vendor's title never having been divested, he may reclaim the property if the condition be not performed ; even as against a purchaser for value in good faith. In Ballard v. Burgett, 40 N. Y. 315, the contest was between the vendor and a bona fide purchaser of the property from the vendee. The court held that under a conditional contract to purchase one of the terms of which was that the chattel which was deliv- ered to the vendee should remain the property of the vendor until the contract price was paid, the title remained in the vendor against a bona fide purchaser, who bought of the vendee in good faith, and paid full value, without notice of the rights of the vendor. Decisions of other courts to which we are accustomed to look for correct expositions of the common law, are to the same effect. Dresser Mfg. Co. v. Watcrston, 3 Mete. 9; Coggill v. Hartford & New Haven R. R. Co., 3 Gray, 545; Sargent v. Metcalf, 5 Id. 306; Rurbank v. Crooker, 7 Id, 15S; Deshon v. Bigelow, 8 Id. 159; Hirschorn V. Canney, 98 Mass. 149; Zuchtman v. Roberts, 109 Id. 53; Bennerv. Puffer, 1 14 Id. 376; D'Wolf v. Babbett, 4 Mason, 2S9; Copland v. Bosquet, 4 Wash. C. C. 50S; Tibbetts v. Towle, 12 Me. 341; Haven v. Emery, 33 N. II. 66-, Kimball V. Jackman, 43 Id. 242. The cases cited above aS' holding the doctrine that, on a conditional sale, property continues in the vendor as against creditors of and purchasers from the vendee, though possession is delivered to the latter, are, it seems to me, founded on cor- rect principles. In Pennsylvania, a distinction is taken between delivery under a bailment, with an option in the bailee to pur- chase at a named price, and a delivery under a contract of sale containing a reservation of title in the vendor until the contract price be paid, it being held that, in the former instance, prop- erty does not pass as in favor of creditors and purchasers of the bailee, but that, in the latter instance, delivery to the vendee subjects the property to execution at the suit of his ^1 i OPEUTV. as between 19; Steven- ilsh, S Cow. V. Noble, Ci under a con- co:ivcy to a en divested, t performed ; In Ballard I the vendor the vendee. to purchase ;h was deliv- )f the vendor :iined in the )f the vendee of the rights hich we are :ommon law, ,Vaterston, 3 . R. Co., 3 Burbank v. Hirschorn 109 Id. 53; ;tt, 4 Mason, i Tibbetts v. 66] Kimball le that, on a )r as against ^h possession nded on cor- iken between Dailee to pur- mtract of sale 1 the contract stance, prop- purchasers of livery to the e suit of his coGGiLL V. nAunoiin, ktc, r. co. 553 creditors, and makes it transferable to bona (idc purchasers. Chamberlain v. Smith, 44 Pa. 431; Rose v. Story, i Id. 190; Marsh v. Mathiot, 14 S. & R. 211; Hank v. IJnderman, 64 Pa. 499. This distinction is discredited by the great weight of authority, which puts possession under a conditional contract of sale and possession under a bailment on the same footing — liable to be assailed by creditors and purchasers for actual fraud, but not fraudulent per se. Besides the cases already cited on that subject, numerous decisions of like import are referred to by Mr. Perkins, in his edition of Benjamin on Sales, section 320, note. From the hypothesis that, inter partes, no title passes to the vendee, under a contract of sale which is condi- tional as to the transfer of title, until the condition is performed, the only deduction that can rationally be made is that, in such a transaction, the title of the vendor must also prevail over the rights of the creditors of a purchaser from the vendee, whose rights can not rise higher than the source from which they are derived, unless they can show a title superior to that of the vendee whom they represent, arising from some conduct of the vendor which the law denominates as fraudulent. Po.-,session is evidence of title, but is not title, and in this state possession by a party, not in accordance with the actual state of the title, is not, per se, fraudulent. The judgment should be reversed. See note to next case. COGGILL V. HARTFORD, Etc., R. CO. [3 Gray, 545.] Supreme Judrcial Court of Massachusetts, 1854. BiGELOW, J.— It has long been the settled rule of law in this commonwealth, that a sale and delivery of goods, on condition that the property is not to vest until the purchase-money is paid or secured, does not pass the title to the vendee, and that the vendor, in case the condition is not fulfilled, has a right to repossess himself of the goods, both against the vendee and ao-ainst his creditors, claiming to hold them under attachments. 551 MODES OF OBTAINING Tl TI.K TO I'EKSONAL PROPERTY. Ilussey V. Thornton, 4 Mass. 405; Marston v. Baldwin, 17 Id. 606; IJanctt V. rritcliard, 2 Pick. 512; Whitwell v. Vincent, 5 Id. 449; Hill v. Freeman. 3 Cusli. 257. In the case at liar, the jury have found that the original ? ile and delivery by the phiintiffs were conditional. But the de- fendants claim to hold the poods in controversy, as bailees of a bona Jidc purchaser from tiie original vendee, on the ground that, having purchased them in good faith, the rule above stated is not applicable, and tiiat a valid title to the property is vested in such purchaser. This position is supposed to be supported by a dictum of Chief Justice Parsons, in Ilussey v. Thornton, by which it is implied that in such cases the vendor can not reclaim goods in the possession of (5o«a^(/c purchasers from his vendee. But the authority of this dictum, so far as it ever had any, was entirely overthrown in Ayer v. Bartlett, 6 Pick. 7S, where Chief Justice Parker said that it could not be sustained as a general proposition. Some of the elementary writers have stated such a doctrine in unqualified terms; but the authorities cited by them in its support do not sustain the text. Hilliard on Sales, sees. 95 ct scq.; Story on Sales, sec. 313. Chancellor Kent, after stating the rule as to vendees and attaching cred- itors, in conformity with the decisions above cited, adds, that as to bona Jide purchasers, the rule might be otherwise. 2 Kent, Com. [6 Ed.] 49S. In Hill v. Freeman, 3 Cush. 259, the most recent case on the subject in our own reports, the court say, that the right of the vendor to reclaim property in such cases, in the hands of bona Jide purchasers is an open question. Looking, then, at this case, as we think we may, as" one not depending on authority, but to be determined on just and sound principles, it is difficult to see any good and satisfactory reason for the distinction, which is attempted to be made, between the rights of the vendee and his creditors to goods sold and deliv- ered on condition, and those of bona Jide purchasers. All the cases turn on the principle, that the compliance with the con- ditions of sale and delivery is, by the terms of the contract, precedent to the transfer of the property from the vendor to the vendee. The vendee, in such cases, acquires no propei-ty in the goods. He is only a bailee for a specific purpose. The delivery which in ordinary cases passes the title to the vendee must take effect according to the agreement of the parties, and can operate «a p y %\ PERTV. aldvvin, 17 '^hitwell V. iglnal ? lie lit the de- lilees of a le ground )ove stated y is vested supported Thornton, 5r can not rs from his it ever had Pick. 7S, 2 sustained riters have authorities , Hilliard Chancellor hing cred- adds, that crwise. 2 Cush. 259, 5, the court ty in such 1 question, as" one not : and sound :ory reason etween the and deliv- . All the h the con- ; contract, ndor to the perty in the he delivery must take :an operate COGGII.L V. MAKTKORD, KTC, II. CO. 555 to vest the property only when the contingency contemplated In- the contract arises. The vendee, therefore, in such cases, liiiving no title to the property, can pass none to others. lie has only a hare right of possession; and those who claim under liim, either as creditors or purchasers, can acquire no higher or 1 letter title. Sucli is the necessary result of carrying into effect tiie intention of the parties to a conditional sale and delivery. Any other rule would be equivalent to the denial of the valid- itv of such contracts. But they certainly violate no rule of law, nor are they contrary to sound policy. The cases above cited expressly recognize them as legal and valid contracts between the vendor, on the one hand, and the vendee and his creditors, on the other. If valid to this extent, it necessarily follows that they are so for all purposes. If the property does not pass out of the vendor for one purpose, it certainly does not for another. If it remains in him at all, it is because such is the agreement of the parties, and it can not be divested by any act of the ven- dee until the contract is fulfilled. A bona fide r,.. chaser, as well as an attaching creditor, must acquire his title through the ven- dee. If the latter has no title, he can communnate none. The purchaser and the attaching creditor are, in this -espcct, upon the same footing. No equities can intervene to give the former a better right as against the original vendor than the latter; they are in aquail jure. Neither of them has a legal title to hold the property. A mere possession by the vendee carries with it no right or authority to transfer the title. That continues in the vendor until the conditions of sale and delivery are complied with by the vendee, or are waived by the vendor. And this constitutes the precise distinction between a sale and delivery of goods on condition, and a sale procured by fraud or false representations on the part of the vendee. In the latter case, the property passes by the sale and delivery, because such was the agreement and intent of the parties. Therefore, the vendee, having the property as well as the possession of the goods, can pass a good title to a purchaser, who takes the goods in good faith and without notice of the fraud. But the vendor can reclaim the goods by rescinding the contract and avoiding the sale, so long as they remain in the hands of the vendee, or of any one who has taken them with notice of the fraud, or without paying a 556 MODES OK (.HTA.N.NO TirLK .() l-.iUSONA.. l-UOnCRTV. valuable consideration for them. In such case the title to the goods is in the vendee, though defeasible at the "Pf «" of he vendor, because the vendee, or those chumn,« und .r h.m v h knosvled.^e of the fraud, can not honestly or le.al y hold the property as against him. Hut in the case of - cond.f onal sale and dcHvery, the title does not pass from the vendor untd th :„dition iJluUiUed. The vendee o^>^^^ ;^^ ^^f^^ ;;^^'^ s.lc to dispose of the property, but only to hold . tun d the t;'ms of the contract are complied with. White v. Garden, lo , ^ C H. OK), 70 Enis to s on (|IU Lu 3 I in I so WJl Ml nii Ai '■ a li a UOPKIITV. ic title to tlie option of the uljr him with ,Mlly hold the jiuiitional sale ntlor until the ;ht, under such Id it until the ! V. Garden, lo nAUKKU V. niNSMOllK. 557 li in argument on s possession o£ le, it would fur- ruudinp; honest t ownership of nain in a third ndor, by coUu- t, and annexed latter to obtain s, by means of ment would be rty to the fraud, • property ; and e vendee, might IS placed in his n the contract of )Ose of enabling btain security for the bargain, the undation in prin- common law has y to sell can not, her. Chit. Con. in market overt, session, of itself, attels or a bailee I vendee, without it the property is ^ners, in the same e. Besides, there ^ is no good reason or etiuity in placing the burden of a fraudii- lint sale by a vc-ndec, in violation of the condition on which he received the property, upon a bona Mc vendor, rather than ^ upon a bona fide purcliascr. On the contrary, if eitlu-r is to \ lose by his fraudulent act, it should be the latter, who has dealt uitli a party having no authority, instead of the former, who relics upon a valid subsisting contract as the ff>undation of his ilaim. It is the duty of the purchaser to iniiuire, and see that liis vendor has a good title to the property which he undertakes 5 to sell. These views are supported by the authorities: Long 1 on Sales [2 Am. Ed.] 1S9. and cases cited; Copland v. Hos- \ (luet, 4 Wash. C. C. 5SS; D'Wolf v. liabbett, 4 Mason, 294; ^ Lucy V. Hundv, 9 N. IL 298; Porter v. Pettengill, i3 N. IL j 299; llerr,"?'v. Willard, 2 Sandf. 41S; Barrett v. I'ritchard, I 2 Pick. 5i2rDresser Mfg. Co. v. Watcrston, 3 Met. 9. ; The instructions given to the jury, in the present case, were i in conformity with these principles ; and were carefully guarded, so as to prevent the plaintiffs from recovering if they had been .riiilty of laches in reclaiming their property, or had in any way waived the conditions on which the property in controversy was sold and delivered to the oilginal vendee. Exceptions overruled. Consult— Rarrott v. Prltchard, 3 Pick. 512, 13 Am. Dec. 447 ; Singer Mftt. Co. V. Cole, 4 Lea. 439- 4" Am. Kep. 20; Rogers v. Wliiteliouse, M Me. 222; Sumner V. Woods, 67 Ala. 139, 42 Am. Rep. 114; Zucht- Inann v. Roberts. 109 Mass. 53- i^ Am. Rep. 663; Harkness v. Russell, iiSU. S. 678; Winchester Wagon Works v. Carmen, 100 Ind. 31,58 Am. Rep. 382. BARKER V. DINSMORE. [73 Pa. St. 427; 13 Am. Rep. 697.] Supreme Court of Pennsylvania,' May 17, 1872. Replevin by John Dinsmore against William Barker, Jr., and Jesse B. Kilgore, trading as William Barker & Company lor certain sacks of wool. Judgment for plaintiff, and defend- ants bring error. A man, representing himself to be connected with defendant firm, bought from plaintiff, at the latter's farm, the wool in 55S MODES OK oniAlNlNG TITI.K TO I'EKSONAL I'ROPERTY. question, and gave him a mcmoranchim to that effect on a business card of defendants, telling him to come to defendants' oflice in the city ^/y procure his pay. Tlie wool was shipped by plaintiff to defendants, but on its arrival in the city possession of it was procured by the person who had arranged tl.e sale, and who in fact had no connection with defendants 'i»fl by him sold to defendants, they paying him what tl.jy considered the wool was worth. Williams, J. — The verdict of the jury establishes the fact that the plaintiff below did not sell the wool to the defendants' vendor, as an individual, on his own responsibility, but as a member or agent of the defendants' firm, and upon their credit. Nor was the wool delivered to him by the plaintiff. It was delivered to the railroad company, to be carried to Pittsburg, and there delivered to defendants, to whom it was consigned by the plaintiff. Under the contract of shipment the company had no right to deliver the wool to any person except the con- signees; and their delivery of it to the defendants' vendor vested in him no property or right of possession as against the plaintiff. The principle which underlies this case, and bv which the rights of the parties are to be determined, is this: The sale of goods by one who has tortiously obtained their pos- session without the owner's consent, vests in the purchaser no title to them as against the owner. As a general rule no man can be divested of his property without his own consent and voluntary act. It is true that there are exceptions to the rule, as clearly defined and as well settled as the rule itself, but this case does not come within any of them. Here the defendants' vendor, as we have seen, acquired no right or title to the wool under his contract with the plaintiff, and he did not obtain from him its actual possession. The railroad company had no authority, as the plaintiff's agent, to deliver the wool to him, and their delivery gave him no right or title to it whatever. Nor had he any apparent or implied authority from the plaintiff to sell or dispose of it. It is clear, then, that he could convey no title by its sale ; and if so, the defendants could acquire no title by its purchase, though they purchased it for a fair and valuable consideration, in the usual course of trade, without notice of the plaintiff's ownership, or of any suspicious circum- r iXAI. IMJOl'KRTY. to that effect on a come to defendants' vool was shipped by the city possession arranj^ed tl.e sale, lefendant>, and by hat thjy considered establishes the fact 1 to the defendants' onsibility, but as a k1 upon their credit. e plaintiff. It was irried to Pittsburg, n it was consigned iment the company on except the con- defendants' vendor ssion as against the this case, and by determined, is this: ' obtained their pos- n the purchaser no ;neral rule no man s own consent and ;ptions to the rule, rule itself, but this ere the defendants' or title to the wool did not obtain from company had no • the wool to him, tie to it whatever. ;y from the plaintiff at he could convey ;s could acquire no d it for a fair and ! of trade, without suspicious circum- EASTEK V. ALLEX. 559 stances calculated to awaken inquiry or put them on their guard. The case is a hard one in any aspect of it. One of two innocent parties must suffer by the fraud and knavery of a swindler, who had no authority to act for either. But the law is well settled that the ow'ier can not be divested of his property without his own consent, unless he has placed it in the posses- sion or custody of another and given him an apparent or implied right to dispose of it. The case was tried on this principle and as"" there is no error apparent in the record the judgment must be affirmed. Judgment aftirmcd. See note to Coggill v. R. Co., ante, p. 557. § 95. Same— The case of a voidable title. EASTER V. ALLEN. [8 Allen, 7.] Supreme Judicial Court of Massachusetts, 1864. Replevin. At the trial the plaintiffs introduced evidence that the goods were obtained from them by N. Allen without payment, and by fraud and false pretenses. For the purpose of showing fraud, they offered evidence to show that two days after the transaction Allen went into a store in Boston to pur- chase goods, and informed the salesman that he had taken a lease of a store, and was going into business, and gave the name of D. P. Dodge, as a reference ; and they offered to show what Dodge said in reply to inquiries made of him by the sidesman. It was not contended that the answers of Dodge were a part of the pretenses under which the plaintiff's goods were obtained, or that they were false ; ai]d the judge rejected the evidence. The plaintiffs also offered to show that, in .1 subsequent interview with the same salesman, Allen introduced to him one J. T. Dodge, as a dealer in fluid lamps onTremont Row, in Boston ; and that the salesman inquired at Tremont Row', and found that said Dodge was not a dealer in fluid lamps there. This evidence was rejected. One of the plaintiffs testified as a witness, and the defendant 560 MODES OF OBTAINING TITLK TO PERSONAL PROPERTY. offered to show, by cross-examination of him, that five days before the trial he made a complaint against N. Allen for obtaining the goods by false pretenses, and that the warrant which issued thereon was served on the morning of the trial, by arresting Allen. This evidence was objected to, but the judge admitted it to show bias or interest, thereby affecting the credibility of the witness. The judge instructed the jury that, it being agreed that the goods came into the possession of the defendant by a transac- tion which had the form of a sale, the burden was on the plaintiffs to show, by a preponderance of testimony, not only that the goods were obtained by said N. Allen by false pre- tenses, but that the defendant was not an innocent purchaser. The jury returned a verdict for the defendant, anu the plain- tiffs alleged exceptions. Merrick, J. — It appears from the bill of exceptions to have been satisfactorily proved or admitted that the goods replevied were formerly owned by the plaintiffs, and were sold by them to N. Alien. He afterward sold and delivered them to defendant, who claims title thereto only under and by force of that sale to him. The plaintiffs alleged that the sale by them to N. Allen was induced, and that he obtained possession of the goods, by fraud and by false and fraudulent pretenses. If such was the fact, they may undoubtedly rescind and avoid their contract of sale, and may maintain this action against the defendant, unless he was a purchaser in good faith, for value paid, and without notice of fraud. Hoffman v. Noble, 6 Met. 68; Rowley v. Bigelow, i3 Pick. 307. The plaintiffs, having produced evidence upon the trial tending '.o show the alleged fraud, asked the court to instruct the jury that if N, Allen obtained the goods from them by fraud and false pretenses, the burden of proof was upon the defendant to show that he bought them in good faith and for value paid. But the court declined to accede to this request, and rules that the burden of proof was on the plaintiff to show by a pre- ponderance of evidence, not only that the goods were obtained by N. Allen by false pretenses, but also that the defendant was not an innocent purchaser; and the jury were accordingly instructed to that effect. dMB LOPERTY. lat five days r. Allen for the warrant of the trial, i to, but the =by affecting eed that the by a transac- was on the my, not only by false pre- it purchaser, nu the plain- itions to have )ds replevied sold by them red them to id by force of sale by them Dossession of )retenses. If nd and avoid )n against the ith, for value sfoble, 6 Met. ^on the trial rt to instruct rom them by was upon the faith and for est, and rules low by a pre- were obtained defendant was e accordingly EASTER V. ALLEN. 561 This ruling was erroneous. It was sufficient in the first instance for the plaintiffs to prove that they were the owners of the goods, and that their title thereto was never divested by any lawful contract binding upon them. They had, therefore, it such were the fact, an undoubted right to reclaim and recover the goods from any person who had not purchased tliem in good faith and for value paid. This is an exception of which the defendant might avail himself. But, to establish the validity of his title acquired under the sale to N. Alien, it i-; incumbent on him to show that he was a purchaser in fact, rind paid value for tiie goods. Proof to this effect will estab- lish his right, unless it be further shown by the plaintiffs that, ."t the time of his purchase, he had knowledge of the fraud. In respect to promissory notes, it has been repeatedly de- termined that if they have been fraudulently obtained from the maker, or fraudulently put into circulation, in an action thereon liy an indorsee, the burden of proof, after such fraud has been established, is on him to show that he became possessed of them in good faith, by a purchase and payment of value. Sistermans v. Field, 9 Gray, 331 ; Estabrook v. Boyle, i Allen, ^12; Tucker v. Morrill, lb. 52S; Smith v. Edgeworth, 3 Allen, 233. The reason of the rule is applicable with greater force to the case of chattels obtainec .)y fraud; and, therefore, a purchaser from a fraudulent grantee, who had no just title, ought to be required to prove a fact necessarily in his own knowledge, if such fact occurred, that he paid value for the goods which he purchased. This rule, in its application to chattels, was distinctly recognized and affirmed in the case of I'lingle V. Phillips, 5 Sandf. 157. And so in the cases of Hoffman v. Noble and Rowley v. Bigelow, ubi supra, the subsequent purchaser was allowed to maintain his title upon showing affirmatively on his part that he paid value for the chattels transferred to him by a fraudulent vendee. The same rule has been observed and practically enforced in reference to leal estate. Somes v. Brewer, 2 Pick. 1S4; Green v. Tanner, S Met. 411. The further rulings of the court, to which exception was taken by the plaintiffs, were unobjectionable. The testimony offered as to what was said by D. P. Dodge, and what 562 MODES OF OIITAINIXG TITLK TO PEUSOXAI, PROPERTY. tinsvvcrs were returned to the plaintiffs to tlieir inquiries made in Tremont Row, was, under tlie circumstances stated, inad- missible. It was an offer of proof, not of wliat was said by any party to the suit, as to any of the matters involved in its issue, but by stranjj^ers who had no connection with or interest in it, and. therefore, was obviously incompetent. The evi- dence which was admitted in relation to the conduct of the plaintiffs in reference to the attendance of N. Allen as a wit- ness on the trial was competent, as having some tendency to show an effort on their part to suppress the introduction of material evidence in the case, and thus to obtain an unfair and unjust advantage. Such conduct might well create a doubt whether their allegation as to any fraud committed by Allen was well founded. The exceptions, therefore, as to the rejection and admissi- bility of evidence must be overruled ; but they are sustained as to the ruling of the court upon the subject of the burden of proof. Exceptions sustained. See note to next case. BARNARD v. CAMPBELL. [55 N.Y. 456; 58 Id. 73-] Court of Appeals of New l^ork, 18^4, Appeal from order reversing a judgment in favor of plaintiffs and granting a new trial. Replevin of 1,370 bags of linseed. Defendants, in New York, purchased of the broker of one Jeffries, of Boston, i,Soo bags of linseed on August 21, 1S63, and sent him their notes in payment. Jeffries, by fraud, obtained 1,370 bags on an order from plaintiffs on August 24. The linseed was delivered to him, and shipped to defendants. The bill of lading was mailed to them on the twenty-fifth. Defendants paid for their linseed by their notes on the twenty-first. Jeffries failed on the twenty- seventh. ItOrKllTV. iquirics made stated, in ad- it was said by nvolved in its ith or interest it. The evi- )ndiict of the .Ilcn as a wit- tendency to iitroduction of an unfair and ;reatc a doubt ttcd by Allen and admissi- e sustained as he burden of ons sustained. or of plaintiffs ants, in New Boston, i,Soo I their notes in s on an order 5 delivered to ng was mailed heir linseed by )n the twenty- BARNARD \'. CAMPUELI,. 563 Am.kn, J. — The only question involved in the action is, whether the plaintiffs and original owners, or the defendants, tlie purchasers from Jeffries, the fraudulent vendee of the plain- tilts, have the better title to the merchandise in controversy. That as against Jeffries, the right of the plaintiffs to rescind the s;ile and reclaim the goods, by reason of the fraud of the latter, is perfect, is conceded, and was so held upon the trial. Such riylit continues as against any one acquiring title under Jeffries, unless under well recognized principles of law, and under the circumstances of this case Jeffries could transfer a better title tlian he had, or the plaintiffs by their acts are estopped from asserting title as against a purchaser from him. Hut two questions of fact were submitted to the jury: i. Whether the sale to Jeffries was for cash or upon credit; and, 2. If for cash, whether payment was waived and the goods (ioiivered so as, but for the fraud, to vest the property in Jeffries. The jury found, either that the sale was upon credit, or that tlic payment of the purchase price, as a condition precedent to the delivery of the property to and the vesting of the title in Jeffries was waived, and that the delivery to him was absolute and unconditional; and the defendants hnd a verdict, under the instructions of the judge, that the equitable rule applied, that when one of two innocent parties must suffer loss by reason of the fraud or deceit of another, the loss shall fall upon him by whose act or omission the wrongdoer has been enabled to com- mit the fraud ; and that the plaintiffs were in the position of a party who lets another have property unconditionally, and tliereby enables him to sell the same and receive the purchase price from a third person ; and that in such case the purchaser l.ikes the title. In other words, the plaintiffs were held to be estopped from claiming the goods from the defendants in case the jury found that there had been an unconditional delivery by the plaintiffs to Jeffries, notwithstanding as the judge at the circuit expressly declared, and as the evidence showed, the de- fendants purchased the goods from a broker of Jeffries in New York vn the twenty-first of August, and paid for them the same day by ti;iiismitting their notes to Jeffries at Boston, who at once nego- tiated them ; and Jeffries obtained neither the property nor any order for its delivery, or documentary evidence of title or of his 564 MODKS OF Om-AINING TITLE TO PERSONAL PKOl'ERTY. purchase, until the twenty-fourth of the same month, three days after the transaction was consummated as between Jeffries and the defendants. That is, it was held at the circuit that the sub- sequently acquired possession of Jeffries operated by relation to create an estoppel as of the twenty-first of August, in favor of the defendants and against the plaintiffs; and the jury werj in terms instructed that the defendants were purchasers in good faith for value, and acquired a title paramount to that of the plaintiffs, and were entitled to a verdict; and they had a verdict and judg- ment upon this view of their rights. That the defendants were purchasers in good faith, that is, without notice or knowledge of the fraud of Jeffries, or of the defects in his title, for a full consideration actually paid to Jeffries, is not disputed. Both plaintiffs and defendants arc alike innocent of any dishonest or fraudulent intent, and one or the other must suffer loss by the frauds of one with whom they dealt in good faith, for legitimate purposes, and with honest intention. Both were alike the victims of the same fraudulent actor, and if one rather than the other of the parties has done any act enabling the fraud to be committed, and without which it could not have been perpetrated upon the other in the exer- cise of ordinary care and discretion, the loss should, within th rule before referred to, fall on that one of the parties aiding and abetting the fraud, or enabling it to be committed. But good faith, and a parting of value by the one, will not alone determine who should have the loss, or fix the ownership of the property fraudulently purchased from the one and sold to the other. The general rule is that a purchaser of property takes only such title as his seller has, and is authorized to transfer; that he acquires precisely the interest which the seller owns, and no other or greater. '■'Nemo plus juris ad alium trans- fcrrc potest quam ifse hahctr Broom. Leg. Max. 452. The general rule of law is undoubted that no one can transfer a better title than he himself possesses. '■'Nemo dat quid non habct." Per Willes, J., Whistler v. Forster, 14 C. B. (N. S.) 24S. To this rule there are, however, some exceptions, and unless the defendants are within the exceptions they must abide by the title of Jeffries. One of the recognized exceptions applies to negotiable instruments only, and depends for its existence upon the law- OPERTY. h. three clays Efries and the that the sub- ly rehition to 1 favor of the iverj in terms cod faith for he plaintiffs, lict and judg- lith, that is, as, or of the I ally paid to jfendants arc t, and one or li whom they with honest ne fraudulent ties has done v-thout which • in the exer- Id, within th Darties aiding imitted. But /ill not alone nership of the d sold to the l^ropertj takes 1 to transfer; I seller owns, I alium trans- IX. 452. The ansfer a better / non habct." (N. S.) 24S. ins, and unless nust abide by to negotiable upon the law* BARXAUD V. CAMPnELI,. 5^'5 merchant and the reasons of public policy upon which that branch of the law rests. To make this exception available, the negotiable paper must be actually transferred by indorsement in the usual form and for value. Whistler v. Forster, supra; Muller V. Pondir (in this court, December 23, 1S73), 55 N. Y. 3:^; (a) Story, Prom. Notes, sec. 120, note t; Calder v. Hillington, 15 Mc. 39S ; Southard v. Porter, 43 N. II. 379. Another exception is in the case of a transfer by indorsement and delivery of a bill of lading, which is the symbol of the property itself, to a bona fide purchaser for value, by a consignee to whom the consignor and original owner of the o-oods has indorsed and delivered it. This exception is founded on the nature of the instrument, and the necessities of com- merce. The bill of lading, for the convenience of trade, has been allowed to have effect at variance with the general rule of law. But this operation of a bill of lading is confined to a case where the person who transfers the right is himself in possession of the bill of lading so as to be in a situation to transfer the instrument itself, the symbol of the property trans- ferred. Jenkyns v. Usborne, 7 M. & G. 678; Akerman v. riumphery, i C. & P. 53- Bills of lading differ essentially from bills of exchange and other commercial negotiable instruments;^ and even possession of a bill of lading, witliout the authority of the owner and vendor of the goods, or when obtained by fraud, will not authorize a transfer so as to defeat the title of the original owner, or affect his right to rescind the sale and stop the goods in transit. While possession of a bill of lading, or other document of a like nature may be evidence of title, and in some circumstances and for some purposes equivalent to actual possession of the goods, it does not constitute title, nor of itself affect the operatiom of the general rule that property in chattels can not be transferred except by one having the title or an authority from the true owner. Gurney v. Behrend, 3 Ellis & Black. 622; Dows v. Perrin, 16 N. Y. 325; see, also, Saltus v. Everett, 20 Wend. 267, 32 Am. Dec. 541; Brower v. Peabody, 13 N. Y. 121. Jeffries had no bill of lading from the plaintiffs, the vendors of the goods, or any document of like character transferable in the usual course of business, and the transfer and delivery of which to a purchaser 1^66 MODKS OK OBTAINING TITLE TO PERSONAL PROPEUl Y, for value would have operated as a symliolical delivery of the goods, and been the equivalent of an actual delivery, so a-- to terminate the right of the plaintiffs to rescind the sale and reclaim the goods. Another exception to the general rule exists in the case of a sale in market overt ; but as we have no markets overt, and there are no sales, public or private, known to our law, which relieve the buyer of merchandise from the rule of caveat cmi)tor, as applied to the title, this exception need not bo further considered. The defendants can only resist the claim of the plaintiffs to the merchandise by establishing an equitable estoppel, founded upon the acts of the plaintiffs, and in the application of the rule applied by the judge at the circuit, by which, as between two persons equally innocent, a loss resulting from the fraud- ulent acts of another shall rest upon him by whose act or omission the fraud has been made possible. This rule, general in its terms, only operates to protect those who, in dealing with others, exercise ordinary caution and prudence, and who deal in the ordinary way and in the usual course of business and upon the ordinary evidences of right and authority in those with whom they deal, and as against those who have voluntarily conferred upon others the usual evidences or indicia of ownership of property, or an apparent authority to deal with and dispose of it. In such case, for obvious reasons, the law raises an equitable estoppel, and as against the real owner, declares that the apparent title and authority which exists by his act or omission shall quoad persons acting and parting with value upon the faith of it, stand for and be regarded as the real title and authority. It is not every parting with the possession of chattels or the documentary evidence of title that will enable the possessor to make a good title to one who may purchase from him. So far as such a parting with the possession is necessary in the business of life, or authorized by the custom of trade, the owner of the goods will not be affected by a sale by the one having the custody and manual possession. Dyer v. Pearson, 3 B. & C. 3S; Newsom v. Thornton, 6 East, 17; Taylor v. Kymer, 3 Barn. & Adol. 320; Ballard v. Burgett, 40 N. Y. 314. But the owner must go farther, and do some act of a nature to mislead third persons as to the true position of the title. Pickering v. Busk, 15 East, 38. ^ lOPEUTY, ,1 delivery ot elivery, so a^ :he sale and the case of a ts overt, and ir law, whicli le of caveat need not bo ; plaintiffs to ipel, founded cation of the 1, as between om the fraiid- vhose act or 1 rule, general 3, in dealing ice, and who e of business authority in ise who have ices or indicia ority to deal s reasons, the le real owner, hich exists by f and parting : regarded as rting with the 3ence of title 2 to one who ting with the authorized by lot be affected lal possession, irnton, 6 East, >; Ballard v. o farther, and as to the true ,38- BAHNAHD V. CAMPnni.I, 567 Two things must concur to create an estoppel by which an owner may be deprived of his property, by the act of a tliird person, without his assent, under the rule now considered. I. The owner must clothe the person assuming to dispose of tlie property with the apparent title to, or authority to dispose ,)f it; and, 2. The person alleging the estoppel must have- ;ictcd and parted with value upon the faith of such apparent ownership or authority, so that he will be the loser if the appearances to which he trusted are not real. In this respect it does not differ from other estoppels in pais. Weaver v. Harden, 49 N. Y. 2S6; McGoldrick v, Willits, 53 Id. 613; City Bank v. R., W. & O. R. Co., 44 Id. 136; Saltus v. Everett, 30 Wend. 267, 32 Am. Dec. 541; Woostcr v. Sher- wood, 35 N. Y. 27S; Blower V. Peabody, 13 Id. 121. In the case before lis every element of an estoppel is want- ing, and no case was made for the application of the rule by which, under some circumstances, one, rather than the other of two innocent persons, is made to bear the loss occasioned by the fraud of a third person. The defendants consummated their purchase from Jeffries, acting through his broker in New York, and paid for the mer- chandise by remitting, at his request, directly to Jeffries on the twenty-first of August, at which time Jewries had neither the possession nor right of possession of the property, nor any documentary evidence of title or any indicia of ownership, or of dominion over the property of any kind. The plaintiffs had done nothing to induce the defendants to put faith in or give credit to the claim of Jeffries of the right to sell the prop- erty. The defendants then parted with the consideration for the purchase of the seed, not upon the apparent ownership of Jeffries, but upon his assertion of right of which the plaintiff* had no knowledge, and for which they are not responsible. Neither did the defendants at any time do or forbear to do any act in reliance upon the apparent ownership of the property by feffries, or induced by any act or declaration of the plaintiffs, in Knights v. Wiffen, L. R., 5 Q. B. 660, the plaintiff was induced to rest satisfied under the belief that he had acquired title to the property purchased, and so to alter his position, by abstaining from proceedings to recover back the money which he had paid to his vendor, by the declaration of the defendant 5(iS MODES OF ODTAINING TITLE TO PEnSONAI. mOI-EnTY. that it was all ii<,'lit, and his promise that when the fonvardinrr note should be received ho would put the barley on the line. The defendants here at no time had any declaration or state- ment of the plaintiffs upon which to rely, and were not led to act or forbear to act by any documentary evidence of title m Jeffries emanatins from them. There is a manifest .-quity in holdin}-; the owner of property estopped from assertinj? title as against one who, for value actually paid, has purchased it from one havinjj, by the voluntary act or negliKcnce of the owner, tlio apparent title with rifjht of disposal, but with tliis limitation there is no hardship in holding to the rule that the right of property in chattels can not be transferred unless on the ground of authority or title. Public policy requires that purchasers of property should be vigilant and cautious, at least to the extent of seeing that their vendors have some and the usual evidence of title, and if they are content to rest upon their declarations they may not impose the loss, which is the result of their own incautiousness or credulity, on another. The payment for or parting with value for the goods by the purchaser from the fraudulent vendee lays at the foundation of the estoppel, for if he has parted with nothing, he can lose nothing by the retaking of the goods by the original owner, and that payment must be occasioned by the acts or omissions of such owner. It is the payment that creates the estoppel, and if that is not made in reliance on the acts of the owner, the latter is not and can not, in the nature of things, be estopped. The order granting a new trial must be affirmed, and judg- ment .ibsolute for the plaintiffs. All concur. MOTION FOR RE- ARGUMENT. Allen, J. — The question considered by this court, and dis- cussed in the opinion delivered on giving judgment upon this appeal was that distinctly presented by the exceptions to the ruling and decision of the judge upon the trial, and as that was decisive and led to an affirmance of the order granting a new trial, and a final judgment for the plaintiffs, it was not deemed necessary, in assigning the reasons for the judgment, to canvass particularly the argument, or review in detail the authorities f'f ii'ehty. forsvarditifj •n the line, jn or state- e not led to of title in ;st (Hjuity in rtinpj title as lurcliased it encc of the )ut with tliis iile that the d unless on eqiiiies that ous, at least me and the rest upon which is the on another, cods by the 1 foundation he can lose jinal owner, or omissions he estoppel, if the owner, E things, be d, and judg- urt, and d!s- nt upon this (tions to the 1 as that was inting a new not deemed it, to canvass £ authorities i I BAnNARD V. CAMPHKLL. 569 cited by counsel upon a somewhat different view of the case. The entire brief, and all the authorities cited, were neverthe- K-ss carefully esamined and considered; and had the court ;i,|(>pted the views of the learned counsel for the appellants, it is possible a way might have been found to sr.stain the defend- :ints' claim to the property, notwithstanding the pointed excep- tions to propositions in the instructions to the jury, which were deemed erroneous. The case has been again carefully exam- ined, and upon the theory of the coimscl for the appellants, and with the aid of his very able brief, submitted upon the present motion, and the court sees no reason to interfere with the judgment already given. It is proper to say that the uni..:ual delay in passing upon the present application has not b<.v;i because of any intrinsic ditTicnlties in the question prcseiU:, or anv serious doi'.bt as to the correctness of the former decl:,ion. Isolated expressions may be found in elementary treatises, as well as in judicial opinions, which give color to the claim of tlie defendants, to hold the property in dispute as against the plaintiffs, but these were not intended to and do not give the rule by which this and like cases are controlled. They are all proper in the connection in which they are found and for the purposes for which they were used, and ought not to receive any other interpretation than such as ^as designed by the authors. It must be conceded that upon the delivery of the goods to Jeffries by the plaintiffs, under the circumstances, the property passed to Jeffries, and the fact th.it the delivery was induced by fraud did not render the contract void. It was merely voidable at the instance of the plaintiffs, who might elect to disaffirm the contract and reclaim the property. That is, the contract of sale was defeasible at the election of the plaintiffs, the vendors, if the election was seasonably made, and the goods vpclaimed in proper time after the discovery of the fraud. The plaintiffs could lose the right by delay as against the wrongdoer, if in consequence of such delay his position should be changed, and they would have lost it abso- lutely if, during the interval between the delivery of the goods, the vesting of this defeasible title in the purchaser, Jeffries, and the disaffirmance of the sale by the plaintiffs, the goods had been sold to an innocent third party for a valuable considera- tion. The superior equity of a purchaser of property from one ■ 57<> MODKS or OIITAININC; TITJ K lO I'KUSONAI. PHOPKKTV. will) lias acfiiiiroil a title (k-foasihlc at the election of tlic former owner and vendor, Viy reason of fraud, to that of such owner seekin/ 8 It is possible that tlie claim of the defendants to hold as bona ilde purchasers for value is sustained by Fenby v. I'ritchard, 2 Sandf. 151, but this case is so at war with principles rccogiiizfd as well settled by this court in analogous cases, that it can not be regarded as well decided. The cases cited from Maine and Illinois (Lee V. Kimball, 15 Me. 17^; Mutters v. llaughwout, 42 111. iS, S9 Am. Dec. 401), treat the case as analogous to a transfer of negfiliable paper, and liold that a precedent debt is a valuable consideration for the transfer, and gives the trans- feree a good title as against the former owner. This is in direct conflict with the uniform decisions in this state, from Ilay V. Coddington, 5 Johns. Ch. 54, 9 Am. Dec. Jf'nS ; alHrmed, :n Johns. 637; to Weaver v. Harden. 49 N. ^'. 3S6; afHrmed, Turner v. Treadway, 53 Id. 650. One other case from Maine cited bv the cf)unsel for the appellants (Titcomb v. Wood, 3S Me. 561) recognizes the necessity of a valuable consideration, as that term is understood and used by the courts of this state as necessary to give the purchaser of property from a fraudu- lent vendor a superior equity and title to that of the former owner, and find such a consideration in the transfer of property before then stolen from the defendant. The courts say: "Here the defendant being the owner of stolen property, with his right and title unimpaired by the felony, transferred it to McClure for the property in question, in part payment at least. This constituted a valuable consideration tor his purchase, given at the time. Thus it appears that he was a purchaser of the gold watch, bona fide, for a valuable consideration, and without notice of the fraud by which his vendor acquired it. This gives him a superior equity and a better right, and enables him to hold the property against the defrauded vendor." Iiut- ton V. Cruttwell, i El. & HI. 15; and Mercer v. Peterson, L. R., 3 l'2xch. 304, relied upon in support of this application, presented questions under the English Bankrupt Acts, and merely decided that a transfer of effects, by the bankrupt, in performance of a prior executory agreement, for which a full consideration had been paid at the time of the agreement, was not within the condemn.ition of the act or affected by the pro- ceedings in bankruptcy. They do not bear upon the question 'ifore u^. In Clough v. London, etc., R. Co., J^. R., 7 Exch. 26, I Eng. Rep. 148, the question was whether the claim to 572 MODES OK OBTAINING TITLE TO I'EUSONAL PUOPERTV. disaffirm the sale of the goods was seasonably made by the defrauded vendor. The vendor had first sought to stop the 2-oods in transitu, which was an act in affirmance of the sale; but the transit was ended before notice reached the carrier. There was no ac^ avoiding the contract on the ground 0£ fraud done by the vendor, until the plea in the action by Clough, who was found by the jury to be cognizant of, and a party to the fraud in the purchase. No question of consideration or the validity of anv sale of the goods by the fraudulent purchaser was in the case, or considered by the court. Durbrow v. McDomld, 5 Bosw. 130; s. c, sub nom. Winne v. McDon- ald. 39 N. V. 233, was clearly within the rule upon the inter- pretation given to the transaction by the courts. It was said by the superior court that Perry & Company, the purchasers of the wheat, had the full possession of it in the precise manner that the contract between them and the plaintiffs contemplated, and that the purchase and possession of Perry were such as to enable him to confer upon a bona fide purchaser, a pledgee for value, a title valid as against the plaintiffs; and that the advance was made by the defendants after the delivery to Perry & Comjjany of the documentary evidence of title, and the wheat pledged as security at the time of the , dvance. The evidence upon the record in this court, it would seem, left the precise time when some of the occurrences tcok place in doubt, but that the spe- cific wheat was pledged, at the time of the advance, was estab- lished, although possibly the muniments of title were not then delivered. The title and possession had vested in Perry & Company at the time of the pledge ; and that fact clearly dis- tinguished that from the present case. Judge Bosworth, in Caldwell v. Bartlctt, 3 Duer, 341, and Keyser v. Harbeck, Id. 373, recognizes the doctrine that the advance must be made or consideration parted with upon the faitli of the title of one in actual possession of the property, or the written evidence of title, to give an indefeasible title as a<^ainst the true owner. All the authorities are direct and to the effect that no one but a bona fide purchaser, or pledgee for value — that is, one who gives vnUie for or makes advances upon goods obtained from the owner by fraud or fraudulent representation — and that he who has paid value, pr made advances, or incurred responsibilities upon the credit of them, ONAL PUOPERTV. onably made by the sought to stop the irmance of the sale; leached the carrier. the ground cr fraud ction by Clough, who , and a party to the consideration or the fraudulent purchaser court. Durbrow v. . Winne v. McDon- i rule upon the inter- aurts. It was said by the purchasers of the precise manner that ffs contemplated, and were such as to enable a pledgee for value, that the advance was to Perry & Comjjany the wheat pledged as le evidence upon the lie precise time when lubt, but that the spe- e advance, was estab- of title were not then i\ vested in Perry & d that fact clearly dis- ett, 3 Duer, 341, and the doctrine that the parted with upon the n of the property, or 1 indefeasible title as ies are direct and to chaser, or pledgee for r or makes advances r fraud or fraudulent paid value, pr made n the credit of them, GROSS V. KIKRSKl. D/3 can alone claim to hold them as against such owner. Root v. French, 13 Wend. 573, 2S Am. Dec. 4S2; ^^owrey v. Walsh, S Cow. 23S; Hoffman v. Noble, 6 Mete. 68, 39 Am. Dec. 711. There is no good reason or equity in placing the burden of a fraudulent sale upon a bona fide vendor rather than upon a bona fide purchaser from the fraudulent vendee, unless the purchaser has parted with his money, or some value, upon the credit of possession c .,ome e\ idence of title in the vendee, received from the original owner, and by means of which he lias induced the purchaser to treat with him as owner. The motion for a re-argument must be denied. All conci'r, except Johnson, J., not sitting. CoNSULT--Edmunds v. Trans. Co., 135 Mass. 283; Old Dominion Steam Co. v. Burkhardt, 31 Gratt. 664; Devoe v. Brandt, 53 N. Y. 462; Legrand v. Nat. Bank, 81 Ala. 126, 60 Am. Rep. 140; Lynch v. Beecher, 38 Conn. 490; Ohio, etc., R. Co. v. Kerr, 40 111. 45S; Cochran v. Stewart, 21 Minn. 435 ; Wineland v. Coonce, 5 Mo. 296, 32 Am. Dec. 320; Barker V. Dinsmore, 72 Pa. St. 427, 13 Am. Rep. 697; Rodliff v. Dallenger, 141 Mass. 6, 55 Am. Rep. 439. ^. Warranties. § 96. Implied warranty of t? tie. GROSS V. KIERSKI. [41 Cal. III.] Supreme Court of California, 1871, Wallace, J. — The defendant, a dealer in musical instru- ments, sold and delivered to the plaintiff a piano-forte, nothing being said at the time coiicerning the title to the chattel. This was in February, 1S67. In August, iS^^, certain persons, claiming and ultimately showing ♦^hemselves to be the owners of the chattel, commenced an action against Gross for its recovery. The latter thereupon g.ive notice to his vendor, the defendant, of the bringing of the action. In September follow- ing judgment passed against Gross. In October the piano-forte was taken from his possession, and in November, 1S69, he brought the present action against Kierski for breach of the 574 MODKS OK OHTAIXING TITl.E TO I'KKSONAL PROPERTY. warranty of title to the chattel. The court below gave jinlg- inent for the plaintiff, and tc reverse that judgment this appeal is brought. The vendor of goods and chattels in possession is held, by implication of law, to warrant the title. This rule was recog- nized l)y this court 'n the case of Miller v. Van Tassel, 24 Cal. 45S, and may be said to have become firmly ingrafted in the jurisprudence of this country, whatever may be the doubts at present surrounding it in England, as indicated in the recent cases of Morley v. Attcnborough, 3 Welsliy, Ilurlstone & Gor- don Exch. R. 507, and .Sims v. Marryat, 17 Q. B. 290, where it was said by Lord Campbell, C. J., that "on that point the law is not in a satisfactory state." In the case at bar this general rule is not questioned by the defendant, but it is claimed that the action here was not brought within two years next after the breach of the warranty, and is, therefore, barred by the statute of limitations, which was pleaded below, and is insisted upon in this court; and this presents the only question to be determined. The statute undoubtedly commenced to run from the earliest time at which the plaintiff might have sued. This would, of course, be that period at which the breach must be considered to have happened. And this is the precise question upon which the parties are at issue here — the defendant claiming that his warranty was broken in February, 1867, when he sold and delivered the chattel, and the plaintiff insisting that the breach did not occur until October, 1S69, when the property was taken by the true owner. In an action brought against the vendor of chattels upon an express warranty of title, the authorities are believed to be uniform upon the point that there is no breach in contempla- tion of law until the vendee's jiossession of the goods is in some way disturbed, by reason of the title of the true owner. No substantial difference in this respect is perceived between an express warranty of title made by a vendor upon sale of chattels out of possession and the warranty of title implied by law upon a sale of goods in possession. The fact of the goods being out of the possession of the vendor may well be con- sidered to put the vendee upon his guard, and it is his own folly if, under such circumstances, he will not protect himself IIOPEKTY. V gave jml}?- it this appeal n is hel'l, by le was lecoi^- asscl, 24 Cal. j^iatted in the the doubts at in the recent Istone & Gor- i. J90, where hat point the itioned by the as not brought •anty, and is, , which was urt ; and this m the earliest his would, o£ be considered n upon which ning that his he sold and lat the breach rty was taken ttels upon an elieved to be n contempla- Dds is in some wner. ;ived between upon sale of le implied by t of the goods well be con- it is his own rotect himself GROSS V. KIEUSKl. 575 by exacting an express agreement to warrant the title. The doctrine of caveat emptor would apply to such a case. But when the goods are at the time in the possession of the vendor, who deals with them as owner, and under such circum- stances sells and delivers them to the purchaser, the law will imply against the vendor that he warrants the title to the property sold. This implication is indulged for the protection of the purchaser against what would otherwise be the fraud of the vendor, practiced upon him when he is himself not charge- able with negligence; for it is unreasonable to exact of the purchaser of goods that he is in every case to institute an inquiry into the title of his merchant, upon pain of losing both the goods and their price. The purpose of the law in implying the warranty is the protection of the purchaser; it determines that the vendor did warrant the title to the goods, itecause it considers that, under the circumstances, he ought to have done so. It declares that his silence shall be taken to be a warranty of the soundness of his title. The sale and delivery of the goods in possession, where nothing is said about the title, is, therefore, precisely equivalent to an express warranty of title, and, the facts being ascertained, the rights and liabil- ities of the parties are exactly the same. It is true that the court of appeals of Kentucky hold that there is a distinction between an express warranty of title to chattels and the warranty of title implied by law. The express warranty is likened to a covenant to warrant and defend the title, when inserted in a deed of conveyance of lands, and is, therefore, said to be unbroken until an eviction by the true owner, under paramount title, has taken place. The implied warranty is, however, compared to a covenant of seizin, which is said to be broken, if at all, at the instant that it is entered into. As a consequence, it is the settled rule in that state that the statute of limitations, upon breach of an express warranty of title to personal property, commences to run from the time when the vendee is disturbed ; while in case of implied warranty it is set in motion instantly upon the sale and delivery of the ;4oods. 4 Bibb. 304; 3 Marsh, 317; 4 B. Monroe, 201; i Mctc. Ky. R. 572. For the distinction thus made I think that no good reason can be shown. Its operation would, in many instances, deprive the purchaser of the very protection which it 57'' MODKS OF OBTAINING TITLE TO PERSONAL PROPERTY. is the purpose of the implication to afford. Nor is it clear that the analogy supposed to exist between the covenant of seizin and the implied warranty of chattels can be maintained. Mr. Rawle, in his treatise on the covenant of seizin (Rawle on Cov. , [t, Ed.] 50), assumes that the implied warranty of title to chat- tels is understood to be "a title sufficient to retain the posses- sion in the vendee of the chattels," and in illustration of the distinction between seizin in fact and seizin in law, as to real property, he says: "An analogy may be found in the rule with respect to chattels. In the sale of these a warranty of title is implied by the civil and the common law. * » * Yet a subsequent loss of possession by title paramount will be a breach of this warranty, because the vendor is understood to have agreed lawfully to transfer a possession which can be retained." etc. The doctrine of the court of appeals of Kentucky is believed to be unsupported either by text-writers upon the law or the adjudications of the courts of other states of the Union. In Word v. Cavin, i Head, 507, the supreme court of Ten- nessee held that, upon breach of the implied warranty of title to chattels, the statute of limitations commenced to run upon the possession of the chattel being lost, or upon voluntary offer by the vendee to restore it to the seller. Linton v. Porter, 31 III. 107, was an action upon a promissory note given upon the purchase of a chattel with implied warranty of title. The supreme court of Illinois held that it was no defense to say that the vendor had no title while the possession of the vendee remained undisturbed by the true owner. In Case v. Hall, 24 Wend. 102, upon a state of facts substantially similar to those in Linton v. Porter, the defense was overruled on the ground that where the vendee relies upon the warranty of title, express or implied, there must be a recovery by the real owner before an action can be maintained. See, also, Vibbard et al. v. Johnson, 19 .Johns. 77; Story on Sales, sec. 203; Parsons Merc. Law [2 Ed.], 50, and cases there cited in note; Hilliard on Sales [3 Ed.], 391, and cases cited in note. ^m I'ROPERTY. is it clear that nant of seizin ntaincd. Mr. awle on Cov. , )f title to chat- in the posses- stration of the aw, as to real in the rule with nty of title is * * Yet a unt will be a understood to which can be cky is believed he law or the Union. court of Ten- arranty of title d to run upon voluntary offer I V. Porter, 31 given upon the of title. The jnse to say that of the vendee ise V. Hall, 24 imilar to those on the ground af title, express 1 owner before ibard et al. v. 203 ; Parsons note ; Hilliard EICHHOLZ V. BANNISTER. 577 It results from these views that the plaintiff's cause of action accrued upon the loss of the chattel in October, 1S69, and the statute of limitations will not avail the defendant. Judgment affirmed. Consult — Scranton v. Clark, 39 N. Y. 220, 100 Am. Dec. 430; Whitney v. Ileywooil, 6 Cush. 86; Wood v. Sheldon, 42 N. J. (L.) 421; Iklgerton v. Michels, 66 Wis. 124; Shattuck v. Green, 104 Mass. 42; 'I'iiurston V. Spratt, 52 Me. 202; Close v. Crossland, 47 Minn. 500. § 97. Same— No warrau ^y where sale is simply of seller's interest. EICIIIIOLZ V. BANNISTER. [17 C. B. (N. S.) 708.] English Court of Common Picas, 1864. This was an action for money payable by the defendant to the plaintiff for money received by the defendant for the use of the plaintiff, for money paid by the plaintiff for '■ t defendant at his request, and for money found to be due from the defend- ant to the plaintiff on accounts stated. Claim, £ic). Plea, never indebted, whereupon issue was joined. The cause was tried in the court of record for the trial of civil actions within the city of Manchester, before the deputy recorder, when the facts which appeared in evidence were as follows: The plaintiff was a commission agent at Manchester. I'lie defendant was a job warehouseman in the same place. On the eighteenth of April last, theplaintiff went to the defend- ant's warehouse, and there saw, among other goods which the defendant had just purchased, seventeen pieces of prints, which he offered to buy of him at S^ifd. a yard. After some discussion the defendant agreed to sell them, and gave the plaintiff an invoice in the following form, the whole of which was printed, with the exception of the parts in italics: 37 57S MOUKS OF OBTAINING TITI.K TO PKllSONAI. PUOIM-KTY. "31 Choilioii Street, Portland street, "Manchester, April 18, 1S64. ".I//-. Eirhhoh "Hou<,'ht o£ R. Bannister, job warehonseman. "Prints, fents, j,'rey fustians, etc. Job and perfect yarns in hanks, cops, and bundles. ^^i-j piccis of friiits, 52 yds. at 5 i-4iL - 19 o o "/ j-2 per cent for cash - - - - 060 "^18 14 o" The plaintiff paid for the proods before he left the warehouse and the defendant sent them by a porter to the plaintiff's place of business. The plaintiff sold the lot a few days afterward fo,. /;,y 15s. net. The goods were subsequently returned to the plaintiff, ihey having been recognized as goods which had been stolen from the premises of one Krauss. The goods were taken possession of by the police, and the thief, one Aspinail. was tried at the general (juarter sessions of the peace holden in and for the city of Manchester on the ninth of May last, and convicted, and sentenced to penal servitude for four years. On the part of the defendant, it was objected that there was no case to go to the jury, inasmuch as there is no implied war- ranty of title on the sale of goods. For the plaintiff it was insisted that he was entitled to recover, the money having been paid upon a consideration wl'.ich had wholly failed. The learned judge directed a verdict to be entered for the plaintiff for the amount claimed, reserving leave to the defend- ant to move to set aside the verdict and enter a nonsuit or a verdict for the defendant, if the court should be of opinion that the plaintiff was not entitled to recover. Holker, on a former day in this term, obtained a rule nisi accordingly. C. Pollock now showed cause. Eri.e C. T- — I ^"^ o^ opinion that this rule should be dis- charged. The plaintiff brings his action to recover back money which he paid for goods bought by him in the shop of tlie defendant, which were afterward lawfully claimed from him by a third person, the true owner, from whom they had been stolen. The plaintiff now claims to recover back the money as *ll 'ROPKRTY. nd street, ;il iS, 1S64. ;rfect yarns in 19 o o 060 ";^l8 14 O" the warehouse >laintiff's place lays afterward tly returned to ids which had rhe goods were one Aspinall, icace holden in May hist, and 'our years. that there was 10 implied war- ,as entitled to \ consideration entered for the ; to the defend- a nonsuit or a of opinion that led a rule ?itst i should be dis- ver back money the shop of the led from him by they had been :k the money as ElCmtOI.Z V. HANMSTKIl. 579 having been paid by him upon a consideration which has failed. The jury at the trial found a verdict for the plaintiff, under the direction of tlie learned judge who presided ; and a rule has l)een obtained on behalf of the defendant to set aside that verdict and lo enter a nonsuit, on the ground that it is part of the common law of England that the vendor of goods by the mere contract of sale does not warrant his title to the goods he sells, that the buyer takes them at his peril, and that the rule caveat emptor applies. The case has been remarkably well argued on both sides; and the court are much indebted to the learned couusel for the able assistance tlicy have rentlered to them. The result I have arrived at, is, that the plaintiff is entitled to retain his verdict. I consider it to be clear upon the ancient authorities, that, if a vendor of a chattel by word or conduct gives the purchaser to understand that he is the owner, that tacit representation forms part of the contract, and that, if he is not the owner, his contract is broken. So is the law laid down in the very elaborate judgment of Parke, B,, in Morley v. Attenborough, 3 Exch. 500, 513, where that learned judge puts the case upon which I ground my judgment. A difference is taken in some of the cases between a warranty and a condi- tion (see IJannerman v. White, 10 C. B. (X. S.) S44) ; but that is foreign to the present inquiry. In Morley v. Attenbor- ough, 3 Exch. 513, Parke, H., says: "We do not suppose that there would be any doubt, if the articles are bought in a shop professedly carried on for the sale of goods, that the shop- keeper must be considered as warranting that those who pur- chase will have a good title to keep the goods purchased. In such a case the vendor sells 'as his own,' and that is what is equivalent to a warranty of title." No doubt, if a shopkeeper in words or by his conduct affirms at the time of the sale that he is the owner of the goods, such affirmation becomes part of the contract, and, if it turns out that he is- not the owner, so that the goods are lost to the buyer, the price which he has received may be recovered back. I ventured to throw out some remarks in the course of the argument upon the doctrine relied on by Mr. Ilolker, which he answered by assertion after assertion coming no doubt from judges of great authority in tlie law, to the effect that upon a sale of goods there is no implied warranty of title. The passage cited from Xoy cer- 5S0 MODES OF OBTAINING TITLE TO PERSONAL PltOPEUTV. tainlv puts tlie proposition in a manner that must shock the uucierhtaniliiif,' of any ordinary person. But I take the princi- ple intended to be ilUistrated to be this: I am in possession of a horse or otlier chattel ; I neither affirm or deny that I am the owner; if you choose to take it as it is, without more, caveat emptor, you have no remedy, though it should turn jut that I have no title. Where that is the whole of the transaction, it niav he that there is no warranty of title. Such seems to have been the jjrinciple on which Morley v. Attenborough was decided. The pawnbroker, when he sells an unredeemed l^ledge, virtually says: I have under the provisions of the statute (,vj and 40 Geo. III., c. 99, sec. 17) a right to sell. If you choose to buy the article, it is at your own peril. So, in the case of the sale by the sheriff of goods seized under a fi. fa. — Chapman v. Speller, 14 Q. B. 621. The fact of the sale taking place under such circumstances is notice to buyers that the siieriff has no knowledge of the title to the goods ; and the buvers consequently buy at their own peril. Many contracts of sale tacitly express the same sort of disclaimer of warranty. In this sense it is that I understand the decision of this court in Hall V. Conder, 2 C. B. (N. S.) 22. There, the plaintiff merely professed to sell the patent right such as he had it, and the court held that the contract might still be enforced, though the patent was ultimately defeated on the ground of want of novelty. The thing which was the subject of the contract there was not matter, it was rather in the nature of mind. These are some of the cases where the conduct of the seller expresses at the time of the contract that he merely contracts to sell such a title as he himself has in the thing. But, in almost all the trans- actions of sale in common life, the seller by the very act of selling holds out to the buyer that he is the owner of the article he offers for sale. The sale of a chattel is the strongest act of dominion that is incidental to ownership. A purchaser under ordinarv circumstances would naturally be led to the conclusion that, by offering an article for sale, the seller affirms that he has title to sell, and that the buyer may enjoy that for which he parts with his money. Such a case falls within the doctrine stated by Blackstone, and is so recognized by Littledale, J., in Earl y v. Garrett, 9 B. & C. 928, 4 M. & R. 6S7, and by Parke, B., in Morley v. Attenborough, 3 Exch. 513. I think HOPERTV. list shock the te the princi- possession of that I am the more, caveat irn Jilt that I transaction, it seems to have iboroHp;h was unredeemed ■isions of the ht to sell. If peril. So, in d under a fi. ict of the sale :o buyers that )ods ; and the ly contracts of warranty. In \ this court in the plaintiff he had it, and Eorced, though id of want of I contract there d. These are x expresses at to sell such a it all the trans- the very act of r of the article itrongest act of irchaser under the conclusion itfirms that he at for which he n the doctrine ttledale, J., in .. 6S7, and by 513. I think KICHHOI.Z V. HANNISTEU. 581 justice and sound sense require us to limit the doctrine so often repeated, that there is no implied warranty of title on the sale of a chattel. I can not but take notice that, after all the research of two very learned counsel, the only semblance of authority for this doctrine from the time of Noy and Lord Coke consists of mere tlicta. These dicta, it is true, appear to have been adopted by several learned judges, among others by my excellent brother Williams, whose words are almost obligatory on me. IJut I can not Hnd a single instance in which it has been more than a repetition of barren sounds, never resulting in the fruit of a judgment. This very much tends to show the wisdom of Lord Campbell's remark in Sims v. Marryat, 17 Q. U. 291, that the rule is beset with so many exceptions that they well nigh eat it up. It is to be hoped that the notion which has so long prevailed will now pass away, and that no further impediment will be placed in the way of a buyer recovering back money which he has parted with upon a consideration which has failed. 13yi.es, J. — I also am of opinion that this rule should be discharged. It has been said over and over again that there is no implied warranty of title on the mere sale of a chattel. But it is certainly, as my lord has observed, barren ground ; not a single judgment has beert given upon it. In every cause, there has been, subject to one single exception, either declaration or conduct. Chancellor Kent, 2 Com. 478, says: "In every sale of a chattel, if the possession be at the time in another, and there be no covenant or warranty of title, the rule of caveat emptor applies, and the party buys at his peril ;" for which he cites the dicta of Lord Holt in Medina v. Stoughton, i Salk. 210, I Ld. Raym. 593, and of Buller, J., in Pasley v. Free- man, 3 T. R. 57, 5S. "But," he goes on, "if the seller has possession of the article, and he sells it as his own, and not as agent for another, and for a fair price, he is' understood to war- rant the title." Thus the law stands that, if there be declara- tion or conduct or warranty whereby the buyer is induced to believe that the seller has title to the goods he professes to sell, an action lies for a breach. There can seldom be a sale of goods where one of these circumstances is not present. I think Lord Campbell was right when he observed that the exceptions had well nigh eaten up the rule. c^Si MoPKs 1)1- oniAiNiNc; rni.K to i-kksdnai. ntoi'i.u iy. Kk ATiNO, J.— I am of tlie same opinion. Wiietlier it hv an cxciption to tlic rule or a part of llie ^'eneral rule, I think we do not controvert any decided case or dictum when we i' .sert that, under circumstances like those of the present case, the seller of floods warrants that he has title. These <,'oods were bought in the defenilanfs shop in the ordinary course of busi- ness. He ^'ives an invoice with them which represents that he is selling them as vendor in the ordinary course. I think the case falls within that put by Parke, H., in Morley v Atten- borou^di, 3 Exch. 513, of a sale in a shop, which he treats as a circumstance whicii beyond all doubt gives rise to a warranty of ownership. 1 was somewhat pressed by Mr. Ilolker's (pies- tion whether there is more atlirmance of title in the case of a sale in a shop than in a sale elsewhere. It may be that the distinction is very tine in certain cases. If a man professes to sell without any (lualilication out of a shop, it is not easy to see why that should not have the same operation us .t sale in the shop. It is not necessary, however, to decide that question now. Here, the sale took place in a public shop, in the ordi- narv way of business, and every circumstance concurs to bring the'case within the distinction put by I'arke, IJ., in Morlcy v. Attcnborough. Rule discharged. CoNsiLT— Jones v. Huggeford, 3 Mete. 518; Bank v. Mass. Loan Co., 123 Mass. 330; Krunibliaar v. ]5irch, S3 Pa. St. 42/; The Monte Allegre, 9 Wheat. 616; Neal v. Gillaspy, 56 Ind. 451, 26 Am. Rep. 37; Cohn V. Ammidown, 120 N. Y. 398. § 98. Same— Nor where goods are not in seller's posses- sion. GOULD V. BOURGEOIS. [51 N. J. Law, 361.] Supreme Court of Ncxv Jersey, i88g. Rule to show cause. Error to circuit court, Atlantic county, before Justice Reed. Argued at February term, 1SS9, before Beasley, Chief Justice, and Justices Depue, Van Syckcl, and Knapp. M Ol'KKTY. lier it \>v an , I think %vc L-n wf 1' -scrt nt casi', tlie •jjooils were mrsc of biisi- sents tliat he I think tlie ey V Atten- ic treats as a :o a warranty olkcr's ([nes- he case of a be tliat the professes to ot easy to see t sale in tlic that cjuestion in the ordi- icnrs to bring in Morlcy v. e discharged. V. Mass. Loan 27; Tlie Monte ) Am. Rep. 37; lUer's posses- Goi'i.n V. iioruoKois. 583 ; Justice Reed. Jeasley, Chief napp. ]),,,,ip;, J.— Tliis suit was upon a promissory note made by the defenilant. The defense was tlie want or failure of con- M.leration. The city council of Holly Beach City proposed to In.ild a breakwater. The defendant was an applicant for a contract to do the work, and prepared and sent to the city o.uncil an agreement with the city to that effect. Members of the city council sent word to the defendant that the city had already entered into a contract for the building of the break- water with Gould it Downs, that these parties could not fullill their contract, and that, if the defendant would make a satis- factory arrangement with (iould .\: Downs, the city would give lum the contract. The parties thereupon entered into negotia- tion the conclusion of which was a contract in writing an^7-" Subsequently, the city council, iinin-obtaiiedthe opinion of counsel that the city had no power to build the breakwater, refused to ratify the arrange- ment of the defendant with Gould & Downs, and abandoned the project of constructing the work. The note sued on was oiven in compliance with the terms of this assignment. There was no proof of an express warranty by Gould &: Downs of the vdidity of their contract, nor any evidence from which fraud, either in representation or concealment on their part, could be inferred. The power of the city to make the contract was not mooted until after these parties h.id concluded their arrange- ment anrl the assignment had been made ; and, if the contract was invalid, its invalidity arose from the city charter,— a public ■,ct ecpially within the knowledge of bo^h parties. The dcfend- ■mfs contention was that, inasmuch as there was a sale of the contract, a warranty that the contract was a valid contract was implied, and that, the contract being ultra vires on the part of the city, and void, the consideration entirely failed. If the proposition on which the defense was rested be sound in law, the defense was appropriate in this suit. The doctrine of implied warranty of title in the sale of goods applies as well to the sale of a chose in action, and extends not merely to the % 5'^4 MODI'S OK OIllAlNlNli TITI.K TO I'KllSONAl. I'UOI'KUIY. paper oil which the cliosc in action is written, 1)ut cniliraccs also till- validity of the ri^^lit piirportcil to he transferred. Wo.ul V. Shchlon, 4J N. J. Uaw, 421. Nor is there nnythinn in the nature of the ollcRed inHrmity of the contract that would bar the defense. In the ordinary case of a suit on a hreach ot warranty of title the validity of the vendor's title a^jainst the adverse claimant is Iriahle. if the purchaser has in fact lost title, although the transactions which determine the vendor's title arc res inter alios acta. If the contract which was the suhject-maltir of the assinjinncnt was in fact ultra vires, a foundation was laid for this defense, the city havin},Mcpudiated the contract in limine on t!iat ground. The validity of the defense offered and overruled depends upon the fundamental proposition whether, under the circum- stances of this sale, a warranty of title is ir .)lied in law. The theory on which a warranty of title is implied upon the sale of personal property is that the act of sellinj,' is an allirmation of title. The earlier English cases, of which Medina v. Stough- ton, I Salk. 210, i Ld. Raym. 593, is a type, adopted a dis- tinction between a sale by a vendor who was in possession and a sale where the chattel was in the possession of a third person; annexing a warranty of title to the former, and excluding it in the latter. In the celebrated case of Pasley v. Freeman, 3 Term R. 51, Buller, J., repudiated this distinction. Speaking of Medina v. Stoughton, this learned judge said that the dis- tinction did not appear in the report of the case by Lord Ray- mond, and he adds: "If an afhrmation at the time of the sale be a warranty, I can not feel a distinction between the vendor's being in or out of possession. The thing is boiight of him, and in consequence of h=^ assertion; and, if there be any dif- ference, it seems to me that the case is strongest against the vendor when he is out of possession, because then the vendee has nothing but the warranty to rely on." Nevertheless the English courts continue to recogni/.^ the distinction, with its incidents, as adopted in Medina v. .^'ti ighton, to some extent, at least so far as to annex the incident of an implied warranty of title on a sale by a vendor in pr ssession. Later decisions have placed the whole subject of implied warranty of title on a more reasonable basis. Mr. Benjamin, in his treatise on Sales, after a full examination and discussion of the late iOPBIlTY. nit onilinu'os tiaiisferri'd. ere niiytliiiij^ :t that would II a hreach ot I ajjaiiist the \\\ fact lost the vendor's hicli was tlie Itra vires, a i}j repudiated ulcd depends r the circum- in law. The Dn the sale of atlirmation of iia V. Stough- ioptcd a dis- ossession and third jierson ; xcluding it in , Freeman, 3 n. Speaking that the dis- by Lord Kay- le of the sale 1 the vendor's ought of him, re be any dif- it against the n the vendee vertheless the :tion, with its ) some extent, lied warranty ater decisions y of title on a 5 treatise on 1 of the late i Goui.n V. nouiioKois. 3^.=; English cases, states the rule in force in England at this time in the following terms: "A sale of personal chattels implies ;in aOirmation by the vendor tliat the chattel is his, and, there- lure, he warrants the title, unless it be shown by the facts and circumstances of the sale that the vendor did not intend to Msscrt ownership, but only to transfer such interest as be might liave in the chattel sold." 2 Benj. Sales [Corbin's i:d.], sees. ^,.\i^-i)Cn. In this country the distinction between sales whera tlie vendor is in possession and where he is mit of possession, with respect to implied warranty of title, has been generally recognized ; but the tendency of later decisions is against the recognition of such a distinction, and favorable to the modern l.nglish rule. Id., section 962, note 21. Hid. War., sections .■16, 247. The American editor of the ninth edition of Smith's Leading Cases, in the note to Chandelor v. Lopus, after citing the cases in this country which have held that the rule of caveat emptor applies to sales where the vendor is out of possession, remarks that in most of them what was said on that point was obiter dicta, and observes "that there seems no reason why, in everv case where the vendor purports to sell an absolute and perfect title, he should not be held to warrant it." i Smith, Lead. Cas. [Ldson's Ed.] 344. In Wood v. Sheldon, supra, Chief Justice Beasley, in delivering the opinion of the court, adopted, in terms, the rule stated by Mr. Benjamin, and made it the foundation of decision. The precise question now under discussion did not then arise. In Eichholz v. Bannister, 17 C. B. (N. S.) 70S-731, Erie, C. J., said: "I consider it to be clear ui>on the ancient authorities that, if the vendor of a chattel by word or conduct gives the purchaser to understand that he is the owner, that tacit representation forms part of the con- tract; and that if he is not the owner his contract is broken. * * • In almost all the transactions of sale in common life, the seller, by the very act of celling, holds out to the buyer that he is the owner of the article he offers for sale." In that case it was held that on the sale of goods in an open shop or warehouse, in the ordinary course of business, a warranty of title was implied; but there is a line of English cases holding that, where the facts and circumstances show that the purpose of the sale, as it must have been understood by the parties at the time, was not to con- ey an absolute and indefeasible title, I 5S6 MOI.i:s OF OnrAlNING TITLE TO I'KKSONAL PROl'ERTV. but only to transfer the title or interest of the vendor, no v.ar- rantv of title will be implied. In this proposition the fact that the vendor is in or out of possession is only a circumstance of more or less weicrht, according to the nature and circun -stances of the particular transaction. Thus in Morley v. Attenbor- ough, 3 Exch. 500, the holding was that on a calc by a pawn- broker at public auction of goods pledged to him in the way of business there w:.s no implied warranty of absolute title, the undertaking of the vendor being only that the subject of the sale was a pledge, and irredeemable by the pledgor. In Chapman v. Speller, 14 Q- «• 6zi, the defendant bought goods at a sheriff's sale for ^iS. The plaintiff, who was present at the sheriff's sale, bought of the defendant h.s bir^ain for ^33. The plaintiff was afterward forced to give up the -oods to the real owner. He then sued the defendant, allecin.^ a warranty of title. The court held that there was no implied warranty of title nor failure of consideration; that the plaintiff paid the defendant, not for the goods, but for the ri-ht title, and interest the latter had acquired by h.s pur- chase, and that this consideration had not failed. In Bagueley V Hawlev, L. R. 2 C. P. 625, a like decision was made, vvhere the" defendant resold to the plaintiff a boiler the former h-id boucrht at a sale under a distress for poor rates, the plain- tiff bavin- knowledge at the time of his purchase that the defend.'nt had bought it at such sale. In Hall v. Conder 3 C B (X. S.) 22, the plaintiff, by an agreement in writing by which, after reciting that he had invented a method of prevent- in- boiler explosions, and had obtained a patent therefor widiiii the United Kingdom, transferred to the defendant "the one half of the English patent" for a consideration to be paid. In a suit to recover the consideration the defendant pleaded that the invention was wholly worthless, and of no public utility or advantage whatever, and that the plaintiff was not the true and first inventor thereof. On demurrer the plea was held bad, for that, in the absence of any allegation ot fraud, it must be assumed that the plaintiff was an inventor, and there was no warranty, express or implied, either that he was the true and first inventor within the statute of James, or that the invention was useful or new; but that the contract was for the sale of the patent, such as it was, each party hav- SONAL I'KOl'KRTY. : the vendor, no v/ar- oposition the fact that iiily a chcumstance of lire and circunistanccs Morley v. Attenboi- t f)n a sale by a pawn- d to him in the way of of absolute title, the lat the subject of the by the pledj^or. In the defendant bought he plaintiff, who was of the defendant his teiward forced to give n sued the defendant, held that there was no consideration; that the ;he goods, but for the acquired by his pur- Dt failed. In Bagueley e decision was made, itiff a boiler the former )r poor rates, the plain- his purchase that the In Hall V. Conder, 3 igreement in writing by ed a method of prevent- incd a patent therefor 1 to the defendant "the onsideration to be paid. the defendant pleaded less, and of no public it the plaintiff was not On demurrer the plea ce of any allegation of aintiff was an inventor, - implied, either that he the statute of James, or I ; but that the contract it was, each party hav- GOULD V. nOURGEOIS. 5S7 ; ing equal means of ascertaining its value, and each acting on hi^own judgment. A like decision was made in Smith v. Neale, 3 C. B. (N. S.) 67. Chief Justice Erie, in his opinion in Eichholz v. Bannister, describes Morley v. Attenborough, Chapman v. Speller, and Hall v. Conder, as belonging to the class of cases where the conduct of the seller expresses, at the time of the contract, ihat he merely contracts to sell such title as he himself has in the thing. Tiie opinion is valuable, in that, while it rescues the common law rule of implied warranty of title from the assaults of distinguished judges who held that caveat emptor applied to sales in all cases, and that in the absence of express warranty or fraud the purchaser was remediless, it also placed tlie rule under the just limitation that it should not apply where the circumstances showed that the sale purported to be only a transfer of the vendor's title. Expressions such as "if a man sells goods as his own, and the titic is deficient, he is liable to make good the loss" (3 Bl. Comm. 451), or "if he sells as his own, and not as the agent of another, and for a fair price, he is understood to warrant the title' ^ (3 Kent, Comm. 478)— as a statement of the principle on which the doctrine of implied warranty of title rests, are not inconsistent with the principle adopted by Chief Justice Erie. Stating the principle in the negative form adopted in Morley v. Attenborough, that there is no undertaking by the vendor for title unless there be an express warranty of title, or an equivalent to it by declaration or conduct, affects only the order of proof. It was conceded in that case that the pawnbroker selling his goods undertook that they had been pledged, and were irredeemable by the pledgor, and if it be assumed, as I think it must be, that the act of selling amounts to an affirmation of title of some sort, but that its force and effect may be explained, qualified, or entirely overcome by the facts and circumstances connected with tiie transaction, the difference between Morley v. Atten- liorough and Eichholz v. Bannister will rarely be of any practical importance. The limitation above mentioned upon the doctrine that the a;t of selling is an affirmation of title has been adopted in this slate. In Bogert v. Chrystie, 24 N. J. Law, 57-60, this court held that the general rule that the vendor of goods having pos- 5SS MOUKS OF OBTAINING TITLE TO PERSONAL I'KOPEUTY. session, and sellin r OSGOOD V. I.ICWIS. 59' .otherwise) to be exempt from such defect. Implied warranties :,rc not conclusions or inferences of fact drawn by a jury : but lliey arc the conclusions or inferences of law pronounced by the court upon facts admitted or proved before the jury. If Uie facts be controverted, the court hypothetically instruct the jury tliat if they find such and such facts, then there is an implied warranty, and their verdict must be given accordingly ; but if tlay do not find those facts then there is no implied warranty. Where an inquiry, therefore, is submitted to a jury, whether an allirmation or statement made by the seller of the quality of an article sold be a warranty or not, the question would be, not uliether it be an implied but an express warranty? Had the court below permitted this case to go to the jury to determine whether, upon the whole testimony offered, the oil was winter- pressed oil, the question of express warranty only could have l^ccn the subject of their inquiry. The attempt, therefore, by tlic appellee's counsel to sustain the opinion of the county court on the ground that the present action depends on an implied warranty, if these positions be correct, can not avail them. In support of the doctrine likewise insisted on, that conceding tills to be an implied warranty on which an action on the case could be sustained, without any allegation of fraud, yet that fraud being charged, must be proved ; no case of acknowledged authority has been produced. The passages relied on to estab- lish it in Selwyn'sNisi Prius, PP.4S2, 4S3, tit. Deceit, are mere statements of the principles decided in Dale's Case, Cro. Eliz. 41 ; Springwell v. Allen, Alleyn, 91 ; and Chandelorv. Lopus, Cro. Jac. 4. The only point adjudged in the two former of these cases is that he who sells a chattel without title is not an- swerable to the purchaser (from whom the property is recov- ered by the rightful owner) unless he made an express war- ranty, or knew of the defect of his title. And the only point settled by the last case except that, in pleading, affirmation of a fact does not mean a warranty thereof, is, that if the seller of a horse, knowing him to be unsound, affirms to the buyer that lie is sound ; or, if the owner of a stone of no real value, know- ing it to be such, sell it to a person unskilled in such articles, as a diamond of great value, and atfirm it so to be, no action lies against him by the purchaser whom he has defrauded; and that it is the same thing whether he knew his affirmations to be 592 MOnKS OF OBTAINING TITLE TO PERSONAL PROPEKTV. false, or believed them to be true. It is unnecessary to say that these decisions are at war with the settled axioms of the law as recognized in all modern cases and writers on the subject. In an action on the case, upon an express warranty, fraud and deceit, though alleged, need not be proved, because the alle- gation is immaterial, the action being sustainable without it. The same reason will produce the same consequence in all actions on the case on implied warranties, where the scienter is not an essential ingredient of the right of action. This view of the subject accords with that found in Long on Sales, 120, where, in treating of warranties, in sales of personal property, it is stated, "some warranties are implied by law without any par- ticular stipulation between the parties. Thus the seller is un- derstood to undertake that the commodity he sells is his own; and if it prove otherwise, an action on the case in the nature of deceit l!*.'^ mst him to exact damages for this deceit. In contra t- . ^>'Oivisions it is always implied that tiiey are wholc^c 1. , -a.i if they be not, the same remedy may be had." Yet in either of those cases the seller is liable though ignorant ofthedoicct. But if sued, as directed in "nature of deceit" where tht; sCiC. .er. i.. u-.-iud and deceit, are always alleged, no recovery can be had according to the doctrine contended for, without proof of actual fraud. In such cases the fraud and deceit are intendments of law, not matters of fact necessary to be proved. As was justly observed by Chief Justice Ander- son, who dissented from the other judges in Dale's Case: "It shall be intended that he that sold had knowledge whether they were his goods or not." It hence follows that the opinion of the county court can not be supported on the principle urged in the argument of the third question. Whether the statement in the bill of parcels that the oil was "winter-pressed" be per sc a warranty of that fact is a question of more ditficulty. In oral contracts much of the colloquium was never intended or understood by the parties to be essential component parts of the contract. But in written agreements nothing is inserted which is immaterial ; no fact stated which is not presumed to be relied on by the parties, and for the truth of which the one does not bind himself to the other. Upon this principle it is that mere recitals in deeds h.nve been held to be covenants; upon this ground must rest the decision that the t! • tm ROPEKTY. OSGOOD V. 1. i:\vis. 593 ary to say that of the law as ! subject. In ty, frau-.l and ;iuse the alle- nthoutit. The in all actions nter is not an s view of the s, 1 20, where, property, it is hout any par- e seller is mi- ls is his own; I the nature of lis deceit. In that they are may be had." lOugh ignorant ire of deceit" lys alleged, no contended for, the fraud and t necessary to Justice Ander- e'sCase: "It ;e whether they the opinion of inciple urged in hat the oil was ict is a question the colloquium i to be essential ten agreements : stated which is nd for the truth ; other. Upon ive been held to ecision that the action of covenant could be supported in Craemcr v. Bradshavv, 10 Johns. 4S4. There the plaintiff declared on a bill of sale 1,v which the defendant, in consideration of one hundred and seventy-five dollars, bargained and sold to the plaintiff "a negro woman slave, named Sarah, aged about thirty years, l.chig of sound mind and limb, free from all disease." And llic defendant, in due form, in the covenanting part of the instrument (omitting everything as to age or soundness), cove- nanted only to warrant and defend the slave so sold to the ]ilaintiff against the defendant and all other persons. Tlie alleged breach was that the slave was unsound and affected with divers diseases, etc. Per curiam, the words in the bill of sale '-being of sound mind and limb, and free from all dis- eases," are an averment of a fact and import an agreement to that effect. The words were not used as a mere description of the slave; they amount to an express, not an implied warranty ; to a warranty of the soundness of the slave. The plaintiff is, therefore, entitled to judgment. If the bill of parcels be considered as the written contract between the parties, the statement therein that the oil was ••winter-pressed" could not be considered as mere matter of description, or of opinion or belief of the seller; but as the averment of a material fact of which he has taken to himself the knowledge, and the existence of which he warrants. This court, however, has never decided that the bill of parcels is the written contract, nor is it designed at this time to express any opinion upon that subject; but in Balturs v. Sellers and Pat- terson, 5 Harr. & John. 117, 9 Am. Dec. 492, and 6 Harr. ^S; John. 249, this court did decide that the bill of parcels in that case was written evidence of the contract, and could not be added to or varied by oral testimony. It follows as a neces- sary consequence that if the bill of parcels be "the written evi- dence of the contract" the terms and expressions thereof must receive the same construction that would be given them if expounded from the written agreement itself, where calling It ••winter-pressed oil" would be a warranty that it was such. Upon English authorities independently of any decisions in this state, it would appear that a statement in a bill of parcel* 01 any similar instrument, of the quality of an article sold, is a 38 mmm 59+ MODES OI- OniAIMNO HTLK TO I'KUSONAI. IMIOI'K IITY. warranty thereof. In Yates v. Pyne, 6 Taunt. 446, an action upon a sale note (an instrument (if no <,'reater soleninity or ob- ligation than a bill of parcels) "of tifty-eij,^ht bales of prime sinf,-ecl bacon" on account of a taint in some of it, Justice Heath decldetl "that the contract amounted to a warranty that it was prime singed bacon, and bein- in writin- could not lie added to by parol evidence." And on motion to set aside the verdict, the opinion of the learned judge was sustained by the court of common pleas. In Spehhird v. Kain, 5 I'.arn. & Al.l. 240, an action on the case for breach of warranty, the only evi- dence of which was the advertisement of a vessel as "copper- fastened," yet sold with all faults, upon proof that she was only partially copper-fastened, Hest, J., determined that the plain- tiff was entitled to recover ; and this opinion was athrmed in the court of king's bench. These are cases in which was rec- ognized an express warranty of quality from the mere state- ment thereof in the sale note or advertisement. As establishing a contrary doctrine has been cited for the appellee the case of Jendwine v. Slade, a nisi prius decision of Lord Kenyon in 3 Esp. 572. The action was brought to recover damages on the sale of two pictures, sold under a cata- logue wherein the names of the artists, who had been dead some centuries, were placed opposite to the pictures; the ground of action being that the pictures were not the works o. those artisvs, of which it was alleged the catalogue was a war- ranty. Lord Kenyon said: "It was impossible to make this the case of a warranty ; the pictures were the works of artists some centuries back, and there being no way of tracing the picture itself, it could only be matter of opinion whether the picture in question was the work of the artist whose name it bore, or not. What then does the catalogue import? That in the opinion of the seller the picture is the work of the artist whose name he has affixed to it." Looking only to the facts in the case of Jendwine v. Slade, and the decision of the judge upon them, it might, perhaps, be considered as entitled to all the weight in favor of the appellee, which his counsel have ascribed to it. But when the explanation and grounds of the opinion as given by the judge himself are reverted to, their only application to the case at bar is to recognize the plaintiff's right to recover. He states that it is impossible to make put- ' '"i IIOI'KIITV. 46, an action enmity or oh- ales of prime of it, Tnstice warranty that could not lie set aside the stained by the I'.arn. & Aid. , the only evi- ;1 as "copper- it she was only hat the plain- as atlirmcd in ^vhich was rcc- he mere state- cited for the prills decision k'as brought to d under a cata- lad been dead pictures ; the t the works o.^ ue was a vvar- ; to make this torks of artists of tracing the )n whether the whose name it 1 port? That in rk of the artist ly to the facts in n of the judge entitled to all is counsel have grounds of the verted to, their ze the plaintiff's e to make put- OSGOOD V. LEWIS. 595 ting the name of the artist in the catalogue opposite the picture a warranty, because it was the work of an artist some centuries hack; ami tlicre being no way of tracing the picture itself, it could only be matter of opinion whether the picture in iiuestion was the work <>f an artist to whom it was imputed or not. Suppose, instead of an ancient, it had been a picture of recent execution, what then, by necessary inference, would have been tlie opinion of the learned judge? Why, as there did exist a mode "of tracing the picture itself," therefore, by placing the name of the artist in the catalogue, opposite the picture, is not a mere expression of the opinion of the seller but a vvar- 1 ;uitv of the fact. The oil in controversy is no articlq of an- ticiuity, it was manufactured but a short time before in Xan- tucket, where Lewis resided, and whence he brought it to Bal- timore and sold it as his own. Without great mconsistency iind abandonment of his own reasoning. Lord Kenyon (who decides Jcndwine v. Slade) could not do otherwise than deter- mine that the statement in the bill of parcels that the oil was ••winter-pressed" was a warranty thereof. As a general proposition, it is true that in sales of personal property the seller is not answerable for any defects in the qual- ity or condition of the article sold, without an express warranty or fraud. Hut the universality of this rule is qualified by many exceptions much more inconsistent with it than the principle on which the appellants here rest their right to recover. As if a manufacturer contract to furnish goods at a stipulated (even tliough it be reduced) price, there is an implied warranty that the goods delivered be of merchantable quality. To this effect is the case of Laing v. Fidgeon, 6 Taunt. 108. So, also, if the buyer had no opportunity of ascertaining by inspection the (luality of the article, there is an implied warranty that it he salable in the market under the denomination by which it was sold. Such are the cases of Gardiner v. Gray, 4 Campb. 144, and r.ridge V. Wain, i Stark. 504. It is not sufficient that the article delivered abstractly bear the name of that contracted for ; it must do more ; there is an implied warranty that it be of that (luality which a commodity of that name must possess to be >alable in the market. Nay, such is the disposition of courts (if justice to ingraft exceptions upon this general rule of law that in Gray and another v. Cox and others, in 4 Barn. & Cres. 5,/, MODKS OF ODTA.NMNO Trn.E TO fKHSONA,. rUOPKH TV. ,oS. Al.l.ott, C. T., 'l-'i'le'l. -thai the defendants havinR sold the copper to be 'applied to a speciHc purpose, and hav.njj re- ceived tor it the market price of the day, must, m law, he con- sidered as warranrin,^ it to he reasonably tit for that purpose. \,ul the sa.ne doctrine was previously avowed m liiuett v. Osborn and another, . Stark. 3S4, by Lord EUenborongh, who Mated, that "a person who sells impliedly warrants that the thine sold shall answer the purpose for wh.ch it was sold. The cases of Seixas v. Woods, 2 Cai. 4^, 2 Am. Oec 2,,, ,„d Swett V. Colgate, 20 Johns. ,9^>, n Am. Dec 266, Ime been mainlv relied on for the appellee and .t must be adm. ted t,„l ,.,or. ti.e principles on which they are professedly deeded, it is not possible to reconcile them with the dec.s.ons m Kng- land which have been referred to. Regarding the facts only of these New York cases it might perhaps be urged (but whether upon sustainable ground or not, we mean to intimate no opm- ion) that they differ from the case at bar .n th.s : here the sta e- n,ent relied on as a warranty is of the qual.ty of the thuig sold, vi/. • th-.t it was -winter-pressed;" there the question was whe'ther the selHng an article as bra.illetto or b.uillas creates an implied warranty that it be that for which .t .s sold. 1 he court there, however, have placed their opinions upon no such distinctions; but have broadly determined that the shown,g by the seller to the purchaser, of the invoice representmg the qua - itv, the advertisement of sale, and bill of parcels debvered to tlie buyer, all representing ihe same fact, are no ev.dence of a varranty (either express or implied) of the qual.ty of the art. cles sold. Justices Thompson and Kent by whom Se.xas v. Woods w.as decided (Lewis, C. J. having dissented) appear mainly to found their opinion upon the two old cases of Chan- delor V. Lopus and Springwell v. Allen, to the former of wh.ch thev are made by the reporter to give an entirely new version. They state the decision of the court to have been that an action of trespass would not lie for selling a jewel, affirming U to be . bezar stone when in truth it was not, unless the defendant i,,ew it not to be a bezar stone, or had warranted it to be such The court in that case made no such decision. They held he declaration to be ill, "forasmuch as no warranty is alleged 1 wlrlty having only stated that the f^-'^h "affirmed to Lopus that the stone was a bezar stone "). And so far from :■;■: 'KOI'KK TV. ts having sold ml haviii^j re- II law, I'o con- that purpose." ;d \<^ Hiuctt v. ilioroiigh, who rants that the was sold." ,\iTi. Dec. 315, Dec. 266, have jst he admitted isscdly decided, cisions in Kng- he facts only oi d (bnt whether timale no opin- : here the state- E the thing sold, le question was harillas, creates it is sold. The IS upon no such the showing by icnting the qnal- els delivered to JO evidence of a ality of the arti- vvhom .Seixas v. ssented) appear d cases of Chan- former of which ely new version, en that an action affirming it to be 2SS the defendant ted it to be such. . They held the ranty is alleged " dsmith " affirmed And so far from osciooo V. m;wis. 597 inlimatlng an opinion tliat the action could have l-con sustained it the goldsmith had known the stone not to I'c- a l-c/.ar stone, they expresslv state that " although he knew it to be no l.e/.ar stone ■< is not material; for every one in selling his wares will allirm that his wares are good, or the horse wliich he sells is sound; yet if he does not warrant them to be so it is no cause „f action." As to Springwell v. Allen it professes to settle precisely the same question which arose in Dak's case ; that „o action would lie against a man selling the horse of another which he believed to he his own. Many other cases are relied on. in Seixas v. Woods, some of which are applicable to sales of real propertv only and in none of them n aught be found further sustaining the opinion there pronounced or more strong- ly militating against that now given than the general rule before laid down, that in sales of personal propeity no war- ranty of qnalitv is implied. The case of 'Swett v. Colgate, 20 Johns. 196, 11 Am. Dec. :66, is in fact a mere reiteration of what was decided in Seixas V Woods. The weight of the authority of Seixas v. Woods (and consequcntlv of Swett v. Colgate) is however somewhat shaken by that distinguished jurist, the late Chancellor Kent, by whom it was decided. In his Commentaries, vol. 2, p. 274, 27s, after ample time for the most thorough investigation and mature deliberation upon the subject, when treating " of the implied warranty of the articles sold" he says: " In Seixas v. Woods the rule was examined and declared to be that i£ there was no express warranty by the seller, or fraud on his part, the buyer who examines the article himself must abide by ail losses arising from latent defects equally unknown to both parties; and the same rule was again declared in Swett y. Colgate. There is no doubt of the general rule of law as laid down in Seixas v. Woods and the only doubt is whether it was well applied in that case, where there was a description in writing of the article by the vendor, which proved not to be correc't and from which a warranty might have been inferred." But yield to those cases (what we think them by no means entitled to) the full extent of establishing the universality of the rule, without an exception, that nothing but an express warranty or fraud will enable a purchaser to obtain an indem- uity for a defect of quality in the thing purchased, the case ■M 59S MllDKS <)!■ OIlTAINIVr, THr.K TO I'EK.SONAI. I'llOPEUTY. before lis stands imaffectcil l.y it. The sti.fcment in the Mil of ]^^\\•v\s tliat the oil was " wintcr-prcssid" is ii'<,'anUv as an fsi)riss Nvananlv; an.l nnder llic .licisions in Hatturs v. Sellers .V ratters(,n, 6 I'lavr. »V .lolni. J.|o. y Am. Dec. 49J, the comi and not the jury is the tril.nnal so to dedaic it. The opinions of Ihc county court, therufoie. in none of the exceptions can he sustained. But suppose the hill of parcels is not to be construed in the same manner that a written a<,'reement betueen the parties should be, and is to be regarded as a mere receipt, and that, notuithstandin},' the case of IJatturs v. .Sillers & Patterson, 6 llarr. i\: John. 249, parol evidence mifjht be offered to prove the contract, is it possible that a jury could attach less weight to the written statemef t in the bill of parcels llian they would jIo to Lewis' verbal alhrmation of the same fact; which aflir- nialion is an express warranty, if so intended to be. of which intention in oral contracts, the jury only are competent to jud^e> Adverting then to some of the leading facts in proof by the appellants, tliat they, for the first time, were about to become dealers in sperm oil; that winter-pressed was of nearly double tlie value of summer-pressed oil; that the price paid was that of winter-pressed oil; that such was the tempera- tnre of the weather at the time of sale that the most experi- enced dealers in the article coiild not distinguish the one from the other but by the aid of chemical experiments by men of science; that in the bill of parcels it was denominated " win- ter-pressed " oil ; and the appellee admitted that he had sold it for the best winter-pressed oil, and that it was not what he had sold it for— can the instructions given to the jury (as stated in the fourth exception) that there was no evidence of a war- ranty, be for one moment sustained? Would it have been an unreasonable inference from the facts to be drawn by the jury that in the verbal contract the appellants required and received a warranty of quality? Upon what other ground can its inser- tion in the bill of parcels be accounted for? It matters not that this testimony be contradicted, its force impaired by the proof adduced on the part of the appellee ; in such circumstances it is the jury, not the court, who are to decide. ■f '4 H ; -i I- \A,erv or premises, tnal is 10 say, i" ' t 'e .hl^orhood of forty degrees Fahrenheit; and that the plain- "ff knew, at and before the time when the contract was made ha he representations made to the defendant were false and ifo inded! and knew that the said No. 2 machine was no cap- e o P rforming the work which plaintiff represented it as 1 ing capable of performing, and knew that the machme !;::;;fd be' worthless to the defendant for the purposes for which defendant contracted for it and intended to use it Evid..'ce on defendant's behalf was then admitted, tending to show that, prior to the execution of the -trac^ plauUiff s agents had represented that the machine would -ool 1^0,000 ubic feet to forty degrees Fahrenheit; that defendan had ^co ing his brLeiT with ice, and wished the machine to the rooms to about the same extent; and that the machme ,id not cool the rooms as desired. On cross-examination of the defendant's agent, it appeared that on January 13. iS/9, he wrote to the secretary of the refrigerating '^^-P'-^y ; ^; speaking to Mr. M. Seitz to-day he said that your ag. cement . ve^y unsatisfactory to him; in fact, that before e would ..et the Machine that he wanted a written guaranty from you 6o2 MODES OF OBTAINIXG TITI.E TO PEUSONAI. PROPERTY. that you would cool his building, which you have seen, to three and one half Reaumur, and keep it at that all the time ; other- wise he would not have the machine, as he would have no use for it, as he would have to put himself to great cxpenra and great risk at the same time." To which plaintiff responded, January 20: "I regret to hear that Mr. Seitz feels dissatisfac- tion with the contract made with him. The guaranty he now asks for in addition it would not be proper for us to give, as Mr. Seitz himself will see on further reflection, we think. The maintenance of a certain temperature in his rooms is not solely dependent upon our machines; in fact, there are a great many other things entirely beyond the control of the machine which influence this temperature. The mode of working the rooms, the water used for washing, the fermentation, and many other things might be mentioned in this connection as matters which we can not control, and which, nevertheless, are most import- ant considerations in the maintenance of a given temperature. We are confident, from the experience with the Portner machine during last summer and fall, that the machine sold to Mr. Seitz will not only give him the desired low temperature, but will, in addition, give him what he never before had in the warmer months, namely, pure and dry air. The machine we are building; for him is in many respects far superior (aside from size) to the Portner machine, and when he has had it a year we believe he would not part with it for any money, if he could not replace it. That we must decline to guaranty what Mr. Seitz asks for is simply for the reasons Plated. There are too many side considerations entirely beyond the control of the machines. We would add that we have not in any instance been asked for such a guaranty as a condition of sale, but that all the parties to whom we have sold bought on our represen- tations, and what they have seen and heard of the working of the Portner machine." On January 2i, 1S79, defendant's agent telegraphed plaintiff : "Will you defend any infringe- ment suits against Mr. Seitz for using your machine?" and on January 33, 1S79. wrote: "The machine sold to Mr. M. Seitz is all right, and can be sent at any time that it is ready." On the sixteenth of March he again wrote plaintiff : "Mr. Seitz would like to have you to commence at once putting up his machine." The defendant having rested, the court, on motion, 'ROPERTY. ! seen, to three 2 time ; other- Id have no use it expenrs and iff responded, ;ls dissatisfac- iranty he now us to give, as ve think. The IS is not solely a great many nachine which ing the rooms, d many other matters which ; most import- 1 temperature. I the Portner jchine sold to temperature, tore had in the e machine we superior (aside has had it a y money, if he guaranty what i. There are control of the a any instance sale, but that our represen- he working of c), defendant's any infringe- hiner" and on Mr. M. Seitz i ready." On ff: "Mr. Seitz putting up his irt, on motion, SEITZ V brewers' refrigerating mach. CO. 603 airccted a verdict for the plaintiff for the amount claimed. The circuit judge remarked to the jury that the only defense worthy of consideration was that the machine was sold to the dcfcnd- ,nt under fraudulent representations by the plamtiff s agents, ',nu that there was no evidence of fraud whatever m the case ; that there was evidence to show that the machine did not work satisfactorily, and the jury were doubtless authorized to u.fer that it did not have the capacity of cooling 150,000 cubic feet to the degree stated, but that there was a written contract m the case, which contained no warranty, and, consequently, .£ ,he machine did not fulfill the expectations of the defendant, or if it did not fulfill verbal representations made at the tune the contract was entered into, nevertheless, defendant had no defense; that there was no evulence that false or fraudulent representations had been made; that the machme had been built and put up pursuant to the written contract; and that the defendant could not be permitted, upon the general theory th a the machine was not a satisfactory article, to defeat the plamt.ff from recovery. The verdict having been rendered as du-ected, ,,,, judgment entered thereon, the cause was brought here on writ of error. • 1 j u„ If the defense were solely that the defendant was induced by i dse and fraudulent representations to enter into the contract in question, it is conceded that the circuit court did not err m directing a verdict for the plaintiff, as there was no evidence of fraud in the case. It is earnestly contended, however that, ,„Kler the answer as amended, the defendant was entitled to ■vail himself of the breach of an alleged contract of warranty or euaranty collateral to the contract of purchase and sale; or ol an implied warranty that the machine should be reasonably i ,lt to accomplish a certain result. Assuming the sufhcu^ncy of ,hc pleadings to enable the questions indicated to be raised, we .,c. nevertheless, of opinion that the direction of the circuit curt was correct. The position of plaintiff in error is in the .l,.t place, that the evidence on his behalf tended to show an .acement between himself and defendant in error, entered i,Uo prior to or contemporaneously with the written contract, r independent of the latter and collateral to it, that the machine purchased should have a certain capacity, and should be cap- ..hle of doing certain work ; that the machine failed to come up <5o4 MODES OF OBTAlMNCi TITLE TO PEUSON'AL I'UOl'EKTV. to the requirements of such independent parol contract ; that this evidence was competent; and that the case should, there- fore, have lieen left to the jury. Undoubtedly, the existence of a separate oral agreement as to any matter on \\'iich a written contract is silent, and which is not inconsistent with its terms, may he proven by parol, if, under the circumstances of the particular case, it may properly be inferred that the parties did not intend the written paper to be a complete and final statement of the whole of the transaction between them. But such an agreement must not only be collateral, but must relate to a subject distinct from that to which the written contract applies; that is, it must not be so closely connected with the principal transaction as to form part and parcel of it. And when the \vritin 9 ; Ollivant v. Clepliaiie, 1 10 Ilamilto 1, 1 10 orn, 31 N. Y. as specifically esignatcd was irewery. The Id perform the d it is not con- mance. This 5s of manufac- ;er, nor of pre- 1 the judgment :hase of a spe- ind fit, proper, le operation of ticular circiim- In short, there 1 cool 150,000 •enheit, or any itruction of the stances. •• ', if impui-. We ; in the record, be permitted to ae existence of ged antecedent essed sufficient 2 no more than iitertained, and line itself, con- opinion as well rror in demand- a written guar- his building to legrees Fahren- quiescing in the ions stated, and in thereupon afterward ordering the company to go on w.th the work, as exhibited in the correspondence between the par- lies, seems to us to justify no other conclusion than that rcaeheu hv the verdict. The judgment of the circuit court .s atbrmed. CONSVI.T- -Vincent V. Lelanci, .00 Mass. 4,V; Aultman v. Kennedy, r Minn. ^39; Conner v. Chamberlain, .4 Wis. ^HH; StoraRe Co. v. W00I.S. 9>; Mic... .67; De Witt V. Berry, ,.U l^ «. .,0 ; Chapui . l^obson, 7S N. Y. 74, 34 Am. Rep. ,S12; Mast v. Perce, 5b la. .79. 43 Am. Rep. IJ5. §101. Same-Expressions of opinion. BYRNE V. JANSEN. [50 Cal. 624.] Supreme Court of California, 1875. Action to recover damages for the breach of an alleged warranty of the quality and condition of wool sold by the defendant to the plaintiff. The defendant had a band of sheep in San Bernardino county and on the twelfth day of February, ,S7- O'Connell, the agent of the plaintiff, applied to h.m to purchase his clip of wool to be sheared in April following. The defendant told him he would take twenty-six cents per pound and at the same time stated that the wool would be short, that the sheep were poor and burry, but that the burrs <.enerally fell off during the spring rains. He also told O'Connell where his sheep were and asked him if he wished to see them and the latter replied that he did not. The defend- ,nt and O'Connell knew the sheep and the range on which they were kept and were experienced wool-buyers. In April, ,87^ the defendant delivered the wool, in thirty-eight bales, weiahing nine thousand, five hundred and forty-five pounds. The" plaintiff received it without examination, paid for it, and, without objection, shipped it to San Francisco for sale. The consignees kept the wool until February, 1873, when they bar- ..lined for the sale of the lot. It was then examined and foiind To be in bad condition and the purchaser took only twenty-five hales at twenty-two and a half cents per pound. The re- 6oS MODKS OF OHTAIXINO TITLE TO PERSONAL I'KOrEIlTV. maimlcr was sold in March. iS;;^, at from seven to seventeen cents jier pound. Tlic consij^nces did not inform the plaintiff of the bad condition of the wool until June, iS;3. The plain- tiff then requested the defendant to settle the damages b .t he deciinL'd. This action was coniincnced on the fifteenth day of December, 1S73. On the trial the plaintiff was a witness on his own behalf and was asked by his counsel why he had so long delayed commencing the action. The court, on the objec- tion of the defendant, refused to allow him to answer. Lee. a San Francisco wool-buyer, and Christy, the consignee, had given their depositions which were afterward used by the plaintiff in making out his case. The defendant had judgment and the plaintiff appealed. The other facts are stated in the opinion. BY THE COl IIT. 1. It is apparent that defendant made no express warranty as to the quality or condition of the wool in question. The conversation had between the defendant and the plaintiff's agent, O'Connell, did not amount to a warranty. O'Connell had dealt in wool in the county of San Bernardino for a number of years. He knew the defendant's sheep and the range on which they ran. lie evidently had an opinion of his own founded upon his personal knowledge of the defendant's busi- ness as to the quality of defendant's wool, and he stated at the tri.il that the defendant's wool "was supposed to be as good as any in the county." There is nothing in the circumstance that the defendant expressed a somewhat favorable opinion of his wool, that he indulged an opinion, that, while Mr. Conn's wool might be a little finer than his own, his was fully as profitable as Conn's for manufacturing purposes. This was mere praise of his own property — the simplex commendatio which is allowable in making a trade, and is not held by the rule of the common law to amount to a warranty. 2. Nor do we think that the court below erred in holding that under the circumstances attending the sale there was no implied warranty of the quality or condition of the wool. Some of these circumstances have been adverted to already. The defendant, when the contract of sale was in progress, invited O'Connell to go and inspect the sheep; he declined; tOrEUTV. to seventeen the plaintiff The phiin- laf^es l)-,t he teentl) day of a witness on ly he had so on the ohjec- iswer. Lee. •nsifjnce, had used by the ad judgment •ess warranty estion. The le plaintiff's O'Connell foi- a number the range on of his own ndant's busi- stated at the 36 as good as circumstance le opinion of 2 Mr. Conn's was fully as >. This was commendatio : held by the d in holding there was no of the wool. i to already, in progress, he declined ; MCCORMICK V. KEI.I.Y. 609 said he knew something of them; said "he would make the bargain anyhow, without seeing them." Again, wlun the wool was subsec,uently delivered the plaintiff had an oppor- tunity to inspect it, but did not avail himself of it. It was delivered at the plaintiff's store in sacks. The plaintiff might liave esamined the wool then. That it might have been incon- venient for him to do so is unimportant. Had he done so the inferior quality of the article would have appeared. Under such circumstances no artifice having been resorted to by the defendant to prevent the examination, the maxim caveat emptor applies. 3. There is nothing in the supposed errors of law requiring particular notice. AH of them, save one, seem to have been almndoned by the appellant's counsel. That onf, concerns the action of the court in refusing to permit the plaintiff to explain why he had so long delaved the bringing of the action. But ,s it is conceded by the counsel that the testimony of Lee and Christy furnishes the desired explanation of the delay, the ruling becomes unimportant. Judgment and order affirmed. CovsuLT-Slmar v. Canaday, S3 N- Y. 398, I3 Am. Rep. 523; EUis V \ndrews, s6 N. Y. 83, i.S Am. Rep. 379! »aker v. Henderson, 24 Wis. Son; Carondelet Iron WorHs v. Moore, 7S HI. 65; Bartlett v. lloppock, M N Y. 118. 88 Am. Dec. 4'^; Poland v. Brownell, 131 Mass. 141. § 102.— Same— Patent defects. McCORMICK V. KELLY. [28 Minn. 135.] Supreme Court of Minnesota, 188/. Dickinson, J.— This action was brought to recover the imount of a promissory note made by the defendant to the plaintiffs, for a part of the purchase price of a harvester pur- chased by the former from the latter. The making of the note is not in issue ; the only defense asserted being in the nature of . counterclaim for damages from an alleged breach of warranty, on the part of the plaintiffs, in respect to the harvester. 39 (;,o Moi.r.s OK ourAiNiNc; Tin.i. to pkusonal ruoi'Kiirv. Hy his answer the .Icfc.ul.nt avers that he fust took the machine on trial, a.ul tliat, upon trial, it proved to be unsal.sf.c torv an.l uonld not do -ond work, and that he not.t.ed the plaintiffs to take the machine away, whereupon the plant.lfs promised and agreed with the defendant to put the niaclnne ni .rood order and to furnish certain parts of the niaclune new, and warranted the machine to he well made, of good mater.al, durable, and not liable to break or get out of order; that it ^vould cut and elevate grain as well as any other machme and was in all respects a f.rst-class machine, and capable of doing first-class and satisfactory work as a harvesting machine; rely- in" upon .vhich promises, agreements, and warranties, detendant pvuchased the machine, giving the note in question. 1 he answer further alleges that the plaintiffs refused to put the machine in good order, or to furnish new parts for the machine, and sets forth a breach of the terms of the warranty. J3v a reply the plaintiffs put in issue the making of a war- rantv,' as well the agreement to furnish new parts for the m-iciiine. The evidence on the part of the defendant tended to'prove that he got the machine for trial before the commence- ment of the harvest ot .S7S; that it did not work well, although he used it to cut about seventy acres of grain ; that he o ten made complaint to the agents of the plaintiffs, who urged h.m to keep the machine and do the best he could with it; and that after harvest the agent of plaintiffs represented that it was as cood a machine as there was in the market, and he would make it so- that.it was all right, and would do as good work as any machine in the market, and it should be f^xed up in first-class order, with the new parts referred to in the answer; that the defendant purchased the machine then, and gave the note rely- ina, as he testifies, upon the representations made. The ev.- dJIice tends to show that at this time the defendant knew the defects in the machine of which he now complains. At the request of the defendant the court instructed the ]ury as follows: "If the jury find, from the evidence, that the plaintiffs expressly warranted the machine for which the note n suit was -iver, and that the defendant was induced by such warranty to" execute and deliver said note, the plaintiffs are liable for all damages which the defendant has sustained by reason of the breach of such warranty, and this liability is not tdl'KaTV. irst took the DC unsatisf-.ic- ! notified the the pi !i"n tiffs c niiicliiiif ill iiiiLhinc new, ood material, Drdcr; that it machine, and able of doinj^ nachine; rely- ies, defendant Licstion. The h1 to put the r the machine, nty. inpj of a war- parts for the cndant tended ;hc commence- well, although that he often /ho urged him ith it ; and that that it was as he would make d work as any ip in first-class swer; that the I the note, rely- ade. The evi- dant knew the ns. tructed the jury dence, that the which the note iduced by such e plaintiffs are IS sustained by ; liability is not MCCOHMltK V. KIOI.I.V. r.ii affected bv the fact that the defendant tried said machine before the making of said warranty." To this the plaintiffs excepted. At the request of the plaintiffs the court instructed the jury as follows: "I charge yen that where a general warranty is liven on the sale of a machine, defects that were apparent at the fime of the making of the bargain, and were fully known to the purchaser, can not be relied upon as a defense to a note given tor such machine, when the purchaser has such knowledge at (he time of giving the same. (2) If you find that the machine was taken on trial under a contract to purchase, and that, after having fully tried it. the defendant gave his note therefor, he can not offset against any such note damages arising from any alleged breach of warranty against defects known to the defend- ant at the time of settlement find giving of the note." The court further instructed the jury in the following lan- guage : "A vendor may warrant against a defect that is patent and obvious. * * • You sell me a horse, and you warrant that horse to have four legs, and he has only three. I will take your word for it." The court then read ni the hearing of the jury the following from Addison on Contracts: "When a general warranty is given on a sale, defects which were appar- ent at the time of the making of the bargain, and weie known to the purchaser, can not be relied on as a ground of action. If one sells purple to another, and saith to hiin, 'This is scar- let,' the warranty is to no purpose, for that the oMior may per- ceive this ; and this gives no cause of action to him. To vvar- rant a thing that may be perceived at sight is not good." The court then said to the jury: "Gentlemen, that is not the law of this state." The court erred in these instructions to the jury. It has always been held that a general warranty should not be con- sidered as applying to or giving a cause of action for defects known to the parties at the time of making the warranty, and both the weight of authority and reason authorize this proposi- tion, viz., that for representations in the terms or form of a ^^ arranty of personal property, no action will lie on account of defects actuallv known and understood by the purchaser at the time of the bargain. Marjeston v. Wright, 7 Bing. 603 ; Dyer V Hargrave, 10 Ves. Jr. 506; Schuyler v. Russ, 2 Caines, 202 ; Kcnner v. Harding, 85 111. 264; Williams v. Ingram, 21 rui MoDF.s or- or.TAiMNc; TiTi.ic TO iM:ii.so\.\r. ntoi-icurv. Texas, ,^on; Marshall v. Drawhorii, 27 Ca. 27V. Siicwaltcr v. Foi.l. :^| Miss. 117; Hrown v. niu'dow, lo Allen. 2\i; Story on Cnnt., sec. S,^o; Menjamin on Sales [3 Ed.], ^m; Chitty on Cont. [II Am. i:e a le},'al contract, and not a mere naked a«rieemcnt. It must he a representation of something' as n fact, i^.on which the purchaser relics, and by which he is induced, to some extent, to make the purchase, or is inlluenced in respect to the price or consideration. Oneida Manuf's Society V. Lawrence. 4 Cow. 440; Lindsey v. Lindscy, 31 Miss. 433; niythe V. Speake. 23 Texas. .\H)\ Adams v. John- son, 15 111. 345; Ender V. Scott, 11 Id. 35; Hawkins v. Merry. 10 Id. 3^.: 2 Add. on Cont. [Moifjan's Ed.], sec. 626. In the nature of things one can not rely upon the truth of that which he knows to be untrue; and to a purchaser fully knowing the facts in respect to the property, misrepresentation can not have been an inducement or consideration to the making of the pur- chase, and hence could have been no part of the contract. It has often been said that a general warranty may cover patent defects, and it has led to some misapprehension of the law. The proposition is strictly true, but, as was said by the court in Marshall v. Drawhorn, supra, "it is confined to those cases of doubt and difficulty where the purchaser relics on his warranty, and not on his own judgment." It has no applica- tion to the case of a purchaser who knows the defects in the property and the untruthfulness of the vendor's representations. We do not, however, mean to say there may not be a warranty against the future consctiuenccs or results from even known defects. The fact that a portion of the charge given at the request of the plaintiffs stated correctly the legal principle under consider- ation, can not affect the result. In fact, that the instructions to the iury were thus inconsistent, and calculated to mislead or confuse, rather than inform and guide the jury, is, in itself, a suflicient reason why the verdict should not stand, Vanslyck V. Mills, 34 Iowa, 375 ; C, 13. & Q. R. Co. v. Payne, 49 IH. 499- For the reasons already indicated a new trial mr awarded, and it is unnecessary to consider whether the \ UOI'KIII Y. Shewaltfr v. u, 2-\2 ; Story , ^oz] Cliitty for the brcndi ' for (hiiiKi^jfs nd not a iiifri' F sometliiiif; as ly which he is r is inducnced cida Maiuif's '. Lindscy, 3| dams V. John- ipening the bales, it was ascertained that a portion of them were fa.ocly and deceit- fully packed, by placing in the interior rotten and damaged wool and tags, which were concealed l)y an outer covering of fleeces in their ordinary state. This condition of things had been unknown to Barnard, who had acted in good faith. It wiis, however, communicated to hinx, and he was asked to indemnify the purchaser against the loss he sustained in conse- quence of ii. This he declined to do, and the purchaser brought this suit. The declaration counted — J^irst. Upon a sale by sample. Second. Upon a promise, expres "r implied, that the bales should not be falsely packed. Third. Upon a promise, express or implied, that the wool inside of the bales should not differ from the samples by reason of false packing. The court below, trying the cause without the intervention of a jury, held that there was no express warranty that the bales not examined should correspond to those exl ibited at the broker's store, and that the law, under the circumstances, .,„,^*- OXAL PHOITilirY, and on which he had )mpany, wool-brokers ;o sell unless the pur- lie wool for himsell. iipaiiy, mtrchanls and ;ut, at their request, id communicated the Kello<.:g&' Company, ound, at fifty cents a nd Bond & Company, th day of August, by provided Kellogg & ceeding Mono ay, and they would take it. ;lition, and the senior 1 the day named, and as fully as he desired, ine all the bales, and his he declined to do, n account of all the opening the bales, it 2re fa.ociy and deceit- rotten and damaged an outer covering of ndition of things had ted in good faith. It and he was asked to he sustained in conse- o, and the purchaser ted— implied, that the bales implied, that the wool the samples by reason ithout the intervention ess warranty that the those exl ibited at the er the circumstances, nAUNAKP V. KELLOGG. 615 could not imply any. But the court found, as matters of fact, tiiat the examination of the interior of the bulk of bales of wool, generally put up like these, is not customary in the trade ; and, though possible, would be very inconvenient, attended with great labor and delay, and for these reasons was impracti- cable; and that by the custom of merchants and dealers in foreign wool in bales in Boston and New York, the principal inark°ets of this country where such wool is sold, there is an implied warranty of the seller to the purchaser that the same is not falsely or deceitfully packed; and the court held as a matter of law that the custom was valid and binding on the parties to this contract, and gave judgment for the purchaser. This writ of error was taken to test the correctness of this ruling. Mr. Justice Davis. — No principle of the common law has been better established or more often atfirmed, both in this country and in England, than that in sales of personal property, in the alisenc"e of express warranty, where the buyer has an opportun- ity to inspect the commodity, and the seller is guilty of no fraud, and is neither the manufacturer nor grower of the article he .selbi, the maxim of caveat emptor applies. Such a rule, requiring the purchaser 10 take care of his own interests, has been found best adapted to the wants of trade in the business transactions of life. And there is no hardship in it; because, if the purchaser distrusts his judgment, he can require of the seller a warranty that the quantity or condition of the goods he desires to buy corresponds with the sample exhibited. If he is satisfied without a warranty, and can inspect and declines to do it, he takes upon himself the risk that the article is merchant- able. And he can not relieve himself and charge the seller on the ground, that the exi-mination will occupy time, and is attended with labor and inconvenience. • If it 1^ practicable, no matter how inconvenient, the rule applies. O e of the main reasons whv the rule does not apply in the c ,se of a sale by sample is "because there is .0 opportunity for a personal examination of the bulk of the commodity which the sample is shown to represent. Of such universal acceptance is the doctrine of caveat emptor in this country that the courts of all the states in the Union where the common law preyails, with one exception (South Carolina), sanction it. 6l6 M.)nHS OK OniAINTNG TlTLi: TO PERSONAL PROPERTY. i^nnlyins this acknowledged rule of law to this case, it is easy to settle the rights of the parties and to interpret the con- tract which they made. That the wool was not sold by sample, clearly appears. And it is equally clear that both sides r.Kler- stood that the buyer, if he bought, was to be his ovyn judge ot the quality of the article he purcuased. Barnard expressly stipulated: as a condition of sale, that Kellogg shou d exammo the wool, and he did examine it for himself. If Kellogg intended to rely on the samples as a basis of purchase, why did ho ^o to Boston and inspect the bales at all, afler notice that such inspection was necessary beiore the sale could be com- pleted' His conduct is wholly inconsistent with the theory ol a sale by sample. If he wanted to secure himself against possible loss, he should either have required a warranty or taken the trouble of inspecting fully all the bales. Not doing this, he can not turn round and charge the seller with the consequences of his own negligence. Barnard acted in good faith, and did not know, or have reason to l^elieve, th.it the wool was falsely packed. The sale on his part was intended to be upon the usual examination of the article, and the pro- ceeding by Kellogg shows that he so understood it, and it is hard to see what ground of complaint even he has against Barnard. It will not do to say that it was inconvenient to examine all the bales, because, if inconvenient, it was still practicable ; and that is all, as we have seen, that the law requires. The case of Salisbury v. Stainer, 19 Wend. 15S, is similar m its facts to this case, and the court applied to it the rule of caveat emptor. There bales of hemp were sold, which turned out to be falsely packed. The purchaser wished to treat the sale as a sale by sample, but the court said to h.m: "You were told to examine for yourself, and having opened one bale, and at liberty to open all, and omitting to do it, you can not be permitted to allege th.nt the sale was a sale by sample, nor to recover damages as on an implied warranty. It is, therefore, clear, by the general principles of law adopted m the interests of trade and commerce, that the seller in this instance was not answerable over for any latent defects m the bales of wool. But the learned court below having found that by the custom of dealers in wool in New York and Boston there is a warranty I OPERTY. is case, it is pret the cou- ld by sample, sides ridei- ovvn judge of rd expressly 3uld examine If Kellog-; lase, why did ;r notice that )uld be com- the theory of nself against warranty or I, Not doing Her with the icted in good ieve, that the was intended and the pro- \ it, and it is e has against iconvenient to t, it was still e law requires, is similar in its rule of caveat ich turned out to treat the to him: "You ened one bale, t, you can not le by sample, ranty." It is, aw adopted in seller in this : defects in the t by the custom re is a warranty BAUNAKD V. KELLOGG. 617 bv the seller, implied from the fact of sale, that the wool is not filselv packed, and having held Barnard bound by it. the in- ,,„irv"ariscs whether such a custom can be admitted to control the general rules of law in relation to the sale of personal prop- "iVis to be regretted that the decisions rt the courts defining what local usages may or may not do have not been uniform. In some judicial tribunals there has been a disposition to nar- row the limits of this species of evidence, in others to extend them; and on this account, mainly, the conflict of decision uiscs. But if it is hard to reconcile all the cases, it may be s ,fcly said thev do not differ so much in principle as in the ap- plication of th^ rules of law. The proper oflice of a custom or usi-e in trade is to ascertain and explain the meaning and in- tention of the parties to a contract, whether written or in parol, which could not be done without the aid of this intrinsic evi- he custom set up in this case. In D.ckmson v. Gay, , Allen 29. vv licTvvas a sale of cases of satinets made by samples, there :ei both the samples and the goods, a latent defect not discoverable by inspection, nor until the goods we- P""t^J' "> I at they were unmerchantable. It was contended that by cus- tom the e was, in such case, a warranty imphed from the sale th" he goods were merchantable. But the court, after a full iew of all the authorities, decided that the custom hat a varrauty was implied, when by law it was not imphed, was contrary to the rule of the common law on the subject, and ther ore void. If anything, the case of Dodd v. Farlow 11 Al^n 4.6. is more conclusive on the point. There, forty bales ff go t skins were sold by a broker, who put n.to the memo- ndum of sale, without authority, the words, ''to be o me.- Zntable quality and in good order." It was contended that, by custom? in all sales of such skins there was an imphed wai- ■'n rt-t they were of merchantable quality, and, therefore the broker was authorized to insert the words; but the court lee' he custom itself invalid. They say: "It conf-avenes the incple which has been sanctioned and adopted by th court, upon full and deliberate consideration, that no usage w 11 be held legal or binding on parties which not only relates to 'Ll t Is a particular course or mode of dealing, but wh.ch Xocr.n-afts on a contract of sale a stipulation or obhgat.on ^hich il inconsistent with the rule of the common law on the u iect " It is clear, therefore, that in Massachusetts, where the wo;i was sold and the seller lived, the usage m question vvnnld not have been sanctioned. I New York there are some cases which would seem to have lopted a contrary view, but the earlier and later cases agree w di the Massachusetts decisions. The question in I-nth v Ba 1 . But thil decision has been many times cited, not as an dlus- tration of the rule of pleading, but as an example of the msuf- ilciencv of the alllrmation specified in the case to prove a con- act of warranty; and this, in my opinion, is an evuh^nt m.suse of the precedent, which has been introduct.ve of confus.on. It tl sL abuse that resulted in the judgment m Se.xas Woods, 2 Caines' R. 48, which asserted that a warranty would not arise from a description of the kind of the ar,.cle sold Thi decision was followed by several others in a sn.dar ven.; Ol'KllTV, WOI.COTT V. MOINT. 623 whether, on iwfiiUy infer )ld to be ot the class oC has heen in- at consistent, ed to nic that from a inis- 1 the famous y question in :iency of the ise appearing words, viz. : having skill he atlirmed to or a hundred The conten- i that enough ecause it was )ar stone, nor eing expressly 3 the kind of leading which of this kind nnstances, and tead of a w ar- arranty. The Jingtoits legal such a form of ; deemed ill. lot as an illus- le of the insuf- prove a con- 1 evident misuse f confusion. It ;nt in Scixas v. warranty would he article sold. a similar vein; ' nt the ground upon which this line of cases rested, after heing much criticised and discredited, has been formally repudiated Iv the court of appeals of New ^'ork in Hawkins v. I'emher- t'.n. 51 N. V. lyS. The tendency of recent adjudications has been, I think, to j)ut this subject on a reasonaiile footing. Starting from the admission that, in the absence of fraud and of a warranty, tlif rule of caveat emptor applies, the effort is, not to elevate particular expressions contained in a given contract into a gen- eral rule of law, but to regard each case in tlie light of its own circumstances, and with respect solely to the nn.lerstanding of the parties. Whether the representation or aifirmation accom- panying a sale shall be regarded as a warranty or as simplex cowmcndutio, is a question to be solved by a search for the intention of the contracting parties. The two cases of Jend- wine v. Slade, 2 Espinassc, 572, and Power v. Harham, 4 A. & \l. 473, 31 Eng. Com. Law, 115, are conspicuous examples of this rule. In the former there was a sale shown of two pic- tures, the catalogue of the auction describing one as a sea piece, by Claude Lorraine, and the other, a fair, by Teniers. This description was held by Lord Kcnyon to be no warranty that the pictures were the genuine works of the artists referred to, but merely an expression of the opinion of the vendor to that .effect. In the other case, it appeared that, at a sale of four pictures, they were described as "four pictures, views in Venice — Canaletto," and it was left to the jury to decide whether the intention was to warrant the pictures as authentic, the court distins-uishine this case from the former one by the circum- stance that Canaletto was comparatively a modern painter, the authenticity of whose works was capable of being known as a fad, while, with respect to the productions of very old painters, an assertion as to their genuineness was necessarily a matter of opinion. In these instances the respective aflirmations of the vendor were of equivalent import, intrinsically considered; Init it was left open, as a matter of inference, whether they were to have the same signification when used under variant circumstances. The question consequently is, in every case of this kind, whether the conditions were such that the vendee had the right to understand, and did so understand, that an allnma- t'on or representation made by the vendor was meant as a w arranty. 624 MODES or OBTAINING TITI.K TO I'EKSOVAL PUOI'EHTY. And for tlie determination of tliis qnestion, Mr. Hcnjamin. in his aiiniiral)le treatise on Sales, page 499, says: "A decis- ive test is wiiether the vendor assnmes to assert a fact, of which the buyer is ignorant, or merely states an opinion or judgment iil)on a matter of wiiich the vendor has no special knowledjje, and on which tlie buyer may l)e expected also m have an opinion, and to exercise his judj^ment. In the former case there is a warranty; in the latter, not." This criterion is the product of the learned author's study of the English decisions, and it appears to me to be the most satisfactory one which can be adopted. It is exemplified in a vast number of cases, many of which are collected in the treatise just referred to, and in the voluminous notes upon the case of Chandler v. Lopus, i Smith's Lead. Cas. 23S. It does not seem to me expedient further to refer, on this point, to the books, contenting myself with the single observation tiiat the before cited case of Hawkins v. Pemberton, 51 X. Y. 19S, is in all respects applicable to the facts now present. Resorting, then, to the principle and test just propounded, it is manifest that the judgment of the supreme court can not be disturbed. The court of common pleas, in weighing the evi- dence, bad a right to infer that a warranty of the character of the article sold was within the understanding of the contracting parties. The seller in this case asserted, at the time of the sale, that the seed was of the species which the vendee was in search of. When he made this express assertion, he was aware that the vendee could have no opinion for himself on the sub- ject, for the case states that the seed could not be distinguished by sight or touch. The vendee also knew that the vendor could not be stating the result of his own observation. The facts do not admit of the imperative inference that the assertion of the vendor was mere commendation of his goods, or even that it was the utterance of his view as an expert. If the seller had stated the exact truth, he would have said that he had bought the seed as seed of the specified kind, but that he did not know whether it was so or not. Instead of doing this, he made the positive assertion in question. P'rom such an asser- tion, under the circumstances in evidence, I think the court, although it was not bound so to do, had the right to infer that there was a warranty. IIOPKHTY. r. Hcnjainln. : "Adecis- fact, of wliicli or jiid^tnciU 1 kiiowledjjc'. io liave an former case lor's study of be the most .•mplificd in a in tlie treatise in the case of It does not point, to the ition tiiat the X. Y. lyS, is iropounded, it irt can not be ^hing the evi- e character of le contracting e time of the ,cndce was in he was aware if on the sub- distinguished it the vendor vation. The t the assertion ;oods, or even If the seller 1 that he had It that he did doing this, he such an asser- inlv the court, t to infer that WOLCOTT V. MOUNT. 6a5 Tiic second (jucstion raised in the cause respects the measure ,,f damages. Tlie rule applied in the court below made the plaintiff whole, as he was allowed to recover the difference lutwcen the value of the crop produced and the crop wiiich would have l)cen produced if the seed had been answerable to tlie warranty. This embraces profits, and the contention was, lluit profits arc too remote and uncertain to constitute an iii'^iidient in the recompense which the law gives on a breach of contract. Hut this argument comprises a latitudinarian and incorrect statement of the legal rule. Profits sometimes are not, in a legal point of view, either remote or uncertain. Where the sit'iiation of the parties is such that, supposing their attention to have been directed to the contingency, they must have per- ceived, at the time of the making of the contract, that its lireach would probably result in the loss of definite profits, Midi profits being of an ascertainable nature, the compensation which the law affords to the injured party will embrace these profits. The leading case on this subject, and one which was approved of in this court in Binninger v. Crater, 4 Vroom, 513, is that of lladley v. Baxendale, 9 Exchq. R. 341. The action was for the nonperformance of a contract, and the rule is thus (iciined by the court:. "We think the proper rule in such a case as the present is this: where two parties have made a con- tract which one of them has broken, the damages which the otlier party ought to receive in respect to such breach of con- tract should be either such as may fairly and substantially be considered as arising naturally—?, e., according to the usual course of things — from such breach of contract itself, or such as may reasonably be supposed to have been in the contempla- tion of both parties at the time they made the contract, as the probable result of the breach of it. Now, if the special cir- cumstances under which the contract was actually made were communicated by the plaintiff to the defendant, and thus known to both parties, the damages resulting from the breach of such contract, which they would reasonably contemplate, would be the amount of injury which would ordinarily follow ironi a breach of contract under these special circumstances so known and communicated." 40 tiCi Monns OK <)i!r.\iNiN<; iiti.k to I'KusovAr. imioi'f.ui'y. The rule thus stated li:is hoen nppinvi'd of ami follovvcii in a numcrouK series of decisions bybotii the lCni,disii and Arneriiaii courts, as is abunilanlly shown liy Mr. Si-d.j\vlck in his vahial)le work on I)ainaj;cs, pa^'o 7y (sixtii eilition). The present case falls clearly witliin the scope of this princi- ple. The defendant at the time of the sale was p()ss<-sscd of nil tlie facts — lie knew tlie business of the plaiiUiff, and tiie use to be made of the thiiiLj sold, lie was in a situation to foresee, with entire certainty, the loss that wcndd fall upon tiie plaintiff if the warranty should be broken. Nor are the <,'ains which have been lost subject to any uncertainty. The seed sold w.is planted and came to maturity; the seed stipulated for would have done the same, only the value of the product would have been, to a definite amount, f,M-eater. In such an injury there is nothinfi; speculative or contingent. There arc a number of authorities which sanction the recovery of proiits of a much more uncertain character than these: Davis v. Talcot, i |. Barb. 6ii ; Grifllii v. Colver, i6 N. Y. ■]Sc); Horries v. Hutch- inson, iS C. n. (X. S.) 145, 114 I'^ng. Com. Law; Mcssmoie V. N. Y. Shot and Lead Co., 40 N. Y. 422. The judgment should be alfirincd. See note to next case. § 105. Same— And are merchantable under that descrip- tion. HAWKINS V. PEMBERTON. [51 N. Y. it,S; 10 Am. Rep. 595.] CoJiri of Appeals of New 7'ork, 1872. Appeal by the defendant from a judgment of the superior court of the city of New York at general term entered upon an order denying a motion for a new trial and directing judgment upon a verdict. The action was brought to recover damages for an alleged breach of a contract for the purchase of personal property. The defense was a breach of warranty as to the character of the article purchased, also fraud. lloi'KUTY followed in a md ArneritMii II liis vahialilc if this piiiici- p()SSrd Ellp.nbor- ;arlet cuttings ing that they '3, the action jres. It was t the time of our pictures, left it to the :r the defend- of the artist ;ly as matter iry found for ted to a war- of warranty hould not be jury to say, of the words, ness, or con- on." Rogers, J., ses, it may be sale note, ad- ent to an ex- described or HAWKINS V. PEMBERTON. 633 In Bradford V. Manly, 13 Mass. 145, Chief Justice Parker refers to a case which came before him at nisi fritis of which he says: "An advertisement appeared in the papers which was published by a very respectable mercantile house, offering for sale good Caiaccas cocoa. The plaintiff made a purchase of a considerable quantity and shipped it to Spain, having exam- ined it at the store before he purchased; but he did not know the difference between Caraccas and other cocoa. In the market to which he shipped it there was a considerable diffcr- e-ice in value in favor of Caraccas. It was proved that the cocoa was of the growth of some other place and that it was not worth so much in the market. I held that the advertise- ment was equal to an express warranty, and the jury gave dam- ao-es accordingly. The defendant had eminent counsel and they thought of saving the question, but afterward abandoned it and suffered judgment to go." In Henshaw v. Robins, Metcalf, S3, it was held in a case quite analogous to the one now under consideration that where a bill of parcels is given upon a sale of goods, describing the goods or designating them by a name well understood, such bill is to be considered as a warranty that the goods sold are what they are thus described or designated to be ; and that this rule applies, though the goods are examined by the purchaser at or before the sale, if they are so prepared and present such an appearance as to deceive a skillful dealer. It can make no difference that in most of the cases cited, the description of the articles sold was contained in a sale note or bill of sale. The same affirmation made orally must, upon principle, have the same force and effect. I therefore reach the conclusion, both upon principle and authority, that upon the facts of this case the jury might prop- erly have inferred that there was, upon the sale, a warranty that the article sold was blue vitriol. It was, at least, the duty of the court to have submitted the question of warranty to the jury. I think the facts were so clear and undisputed, that the court could, without error, have decided as a question of law, thU there was a warranty, but this it is unnecessary to decide upon this appeal. The only remaining question to be considered is whether there was a breach of this warranty, and this can need but little mm 634 MODES OF OBTAINING TITLE TO PERSONAL PROPEIITY. discussion. The article sold, if it was known at all in market, was known by another name. It had only from seventeen to twenty-five per cent of blue vitriol in it, but a different sub- stance with a small admixture of blue vitriol. The judgment should, therefore, be reversed and a nev; trial granted, costs to abide the event. All concurring. Consult— Habcock v. Trice, iS 111. 420, 63 Am. Dec. 560; Borrekens V. Bevans, 3 Rawle, 23, 23 Am. Dec. S5; Henshaw v. Robins,9 Mete. 83, 43 Am. Dec. 367; Van Wyck v. Allen, 69 N. Y. 61, 25 Am. Rep. 136; Foggv. Rogers, 84X3-. 558; Pope v. AUis, 115 U. S. 363; White Bronze Co. V. Gillette, 88 Mich. 331; White v. Miller, 71 N. Y. 168, 27 Am. Rep. 13; Jones v, George, 61 Tex. 345, 48 Am. Rep. 280; Forcheimer v. Stewart, 65 Iowa, 594, 54 Am. Rep. 30; Gould v. Stein, 149 Mass. 570; Brantlev V. Thomas, 22 Tex. 270, 73 Am. Dec. 264; Grieb v. Cole, 60 Mich. 397. § 106. Same— That article manufactured is fit for usual purpose. RANDALL v. NEVVSON. [2 Q. B. Div. 102.1 English Court of Appeal, 1877. Statement of the claim, that plaintiff bought of defendant, a carriage manufacturer, a phaeton for two horses, the pole made and supplied for which was so carelessly and negligently made, and of such bad and improper wood, that while the plaintiff was driving the phaeton the pole broke and caused the horses to run away, and the horses were damaged. Defense, denying that the pole was carelessly or negligently made, or of biid or improper wood; and not admitting that the- pole broke by reason of any defect in the wood, or that the defendant sold the phaeton under such circumstances as to render him liable for the consequences of a latent defect. Issue joined. At the trial before Archibald, J., at the Middlesex Hilary sittings, 1876, it appeared that the plaintiff bought of the defendant, who was a carriage builder, a phaeton, in August, m 1 :-* iM DPEIITY. 1 in market, ;eventeen to ifferciit sub- 1 a nev/ trial ! concurring. 5o; Borrekens ns, 9 Mete. 83, im. Rep. 136; White Bronze . 168, 27 Am. Forcheimer v. ;49 Mass. 570; eb V. Cole, 60 fit for usual RANDALL V. NEWSON. 635 defendant, a he pole made gently made, 3 the plaintiff ed the hoises r negligently tling that the- I, or that the stances as to latent defect. dlescx Hilary lought of the 1, in August, 1S74; it was only fitted with shafts for one horse, and the plaintiff gave orders to the defendant for a pole and splinter- bar to be made and fitted to it. The phaeton was sent home with the pole and splinter-bar, ami while the plaintiff was driving it with two horses in Octo- ber, 1S75, the horses swerved and the pole broke short off at the carna^'c. The horses in consequence became restive and were much damaged. There was much contradictory evidence as to the cause of the breaking of the pole, the plaintiff's witnesses saying it was of bad wood, while the defendant's stated that the wood was perfectly goo ^> NV IMAGE EVALUATION TEST TARGET (MT-3) V. // /- ^Str f/. ^ 1.0 •^ 1^ 2.2 !" K4 ^ If 1^ 1^ m 1.4 !.6 1- — ^ !.l III! 1.25 6" . ^ Photographic Sciences Corporation y 23 WEST MAIN STREET WEBSTER, N.Y. 14580 (716) 872-4503 rfM fe ^ L

I CIHM/ICMH Microfiche Series. CIHM/ICMH Collection de microfiches. Canadian Institute for Historical Microreproductions / Institut Canadian de microreproductions histotiques rial RANDALL V. NEWSON. 64 I now to introduce by implication a limitation into contracts of purchase and sale which has never been introduced before. It is said that the case of Readhead v. Railway Co., L. R. 4 Q. B. 379, 3S6, in error, is such a binding authority. But in answer to the cases cited of the implied undertaking in con- tracts of purchase and sale, Montague Smith, J., says: "The counsel for the plaintiff referred to some of the cases in which it had been held that in contracts for the supply of goods for a particular purpose, there is an implied warranty that the goods supplied shall be reasonably fit for that purpose. * * * But the agreement to sell and supply for a price which may be assumed to represent their value is a contract of a different nature from a contract to carry, and has essentially different incidents attaching to it." It is true that the learned judge afterward says: "Even in the cases of contracts to supply goods it may be a question, on which it is not now necessary to express an opinion, how far and to what extent the vendor would be liable to the vendee in the case of a latent defect of the kind existing in the present case which no skill or care could prevent or detect." But it seems impossible logically to hold that a case — in which the court declined to follow the decisions on contracts of purchase and sale, on the ground that those contracts are of a different nature and have essentially different incidents from the contract to carry, which was in discussion in that case— can be fairly binding on this court, so as to oblige it to introduce a particular limitation into a contract of purchase and sale, because, in that case, it was introduced into a contract to carry passengers. The case of Francis v. Cockrell, L. R. 5 Q. B. 501, 503, is based upon Readhead v. Railway Co., and is, therefore, o£ itself no more a binding authority on us in this case than the other. It is true, however, that the lord chief baron, going further than the doubt expressed by Montague Smith, J., does ''ecognize the limitation as applicable to contracts of purchase and sale. L. R. 5 Q. B., at page 503. But the statement of tlie learned judge was not necessary, and therefore is not bind- ing, though of course inviting a careful consideration of the older cases. After such consideration, for the reasons before given, we are of opinion that the undertaking of the present 4r 642 MODES OF OnrAIXIXG TITLE TO PERSONAL PHOPEKTY. defendant was not restricted by the limitations applied to the contract of carriage in Readhead v. Railway Co., and that so lonc^ as the verdict in this case stands it imposes a liability on thc'dcfcndant. We are, therefore, of opinion that the ]udg ment of the court of queen's bench directing the judgment to be entered for the defendant was wrong. In the court of queen's bench a cross rule had been obtained on behalf of the plaintiff for a new trial, on the ground of mis- direction as to the measure of damages. In consequence of the decision that the defendant was not liable at all, it became use- less to argue the point. But Mr. Gates has renewed it before us, and has asked for a new trial on the ground of such misdi- rection, desiring to have such new trial confined to the question of damage only. We think that a question should have been left to the jury similar to that which was left in Smith v. Green, I C P. D. 92, namely, whether the injury to the horses was or was not a natural consequence of the defect in the pole. There ha. '.een a miscarriage in this respect at all events. We are asked to confine the new trial to the question of damages, but considering that the real question is not whether the pole was perfect, but only whether it was reasonably fit, we can not think that the findings of the jury as to the questions left to them in order to determine the liability of the defendant are so satisfactory as to authorize us to confine the question to be raised on a new trial to the damages only. We think that the iud-ment of the court of queen's bench should be reversed, and that the order should be for anew trial generally, if the plaintiff elects to have a new trial at all. If he does not, the verdict and judgment for the plaintiff for i:3 will stand. The plaintiff has succeeded on the appeal, and should there- fore have the costs of the appeal. Kelly, C. B.. in assenting to the judgment of the court, observed that, if the language imputed to him in Francis v. Cockrell, L. R. 5 Q- B., at page 503, be correctly reported, he must have expressed himself inaccurately, and he had no inten- tion to apply the doctrine in Readhead' s Case, L. R. 4 Q. B. 379, to a contract for the sale and purchase of an article to be applied to a specific purpose. Judgment reversed. PEKTV. )lied to the intl that so liability on it the judg udgmcnt to en obtained und of mis- uence of the )ecame use- ;d it before such misdi- the question 1 have been th V. Green, orses was or ole. There ts. We are iamages, but the pole was , we can not itions left to Midant are so lestion to be link that the reversed, and f the plaintiff , the verdict should there- of the court, in Francis v. y reported, he had no inten- .. R. 4 Q. B. n article to be ment reversed. GERST V. JONES. 643 Consult— Fairbank Canning Co. v. Metzgar, iioN. Y. 267; Kellogg liritlge Co. V. Hamilton, no U.S. 116; Pease v. Sabine, 38 Vt. 232; White V. Miller. 71 N. Y. 118; Bragg v. Morrell, 49 Vt. 46; Iloe v. .Sanliorn, 21 N. Y. 55^; •'''la^ v. Smith, 25 Pac. Rep. (Kan.) 886; Chi- cago Packing Co. v. Tilton, 87 111. 57; Ilight v. Bacon, 126 Mass, 16; Deming v. Poster, 42 N. II. 165. § 107. Same— Article sold for particular purpose. GERST V. JONES. [32Gratt. 518; 34 Am. Rep. 773. 1 Supreme Court of Appeals of Virginia, iS^g. Action by D. Jones & Company against Joseph S. Gerst to recover for loss occasioned by defendant furnishing to plaintiffs unsuitable boxes in which to pack tobacco manufactured by them. Plaintiffs recovered judgment for $1,602.36, and defend- ant obtained a writ of supersedeas. The opinion states the facts. Staples, J. — The plaintiffs in the court below were manu- facturers of tobacco in the town of Danville, and the defendant was at the same time engaged in the business of manufacturing boxes to press manufactured tobacco. The defendant agreed to furnish plaintffs for the year 1870, during the inanufacturing season, as many boxes as the latter would need, at the price of sixty-five cents per box. In accordance with t'^is arrangement, defendant furnished the plaintiffs all the boxes they needed in the year 1S70. Plaintiffs pressed their manufactured tobacco in these boxes, and they shipped a large portion of it to their commission merchants in Baltimore. Of the tobacco so shipped, one hundred and sixty-six half boxes, containing about ten thousand pounds, were moulded, in consequence of unseasoned timber having been used in making the boxes, and eight thou- sand pounds remaining in the factory were found, on examina- tion, to be moulded from the same cause. The plaintiff's damage arising from the moulded tobacco is nine cents per pound. It is not claimed that the defendant expressly warranted the boxes, or that he knew they were not suited for the purposes 644 MODES OF OBTAINING TITLE TO PERSONAL PKOrEHTY for which they were ordered. The evidence shows, however, that the timber used in making the boxes for the plaintiffs had been unduly exposed to the weather, and there can be no doubt but that the defendant was apprised of the fact. It also appears that it was customary to rely on the manufacturer of boxes for the selection and use of proper box material and timber, and the manufacture of suitable boxes, and it is not customary for tobacco manufacturers to subject the boxes fur- nished them by box manufacturers to any test to see whether they are made of thoroughly seasoned or dry timber, but they rely upon the box mamifacturer to do this, and that it is his business to do so. i:pon these facts two questions are presented : Is the defend- ant liable in damages to the plaintiffs for the injury to the tobacco? and, if so, what is the measure of recovery? In dis- cussing these questions I shall consider the subjec' .vithout reference to the alleged usage or custom proved as .. part of the plaintiff's case. According to a well known rule of the common law, upon a sale of personal property there is no implied warranty as to its goodness or quality. The maxim, caveat emptor, applies in the absence of fraud or express warranty. Several modifica- tions of this rule have, however, been recognized by the courts perhaps as well established as the rule iisclf. One of these is that upon an executory contract of sale where goods arc ordered for a particular use or purpose k lown to the seller, the latter impliedly undertakes they shall be reasonably fit for the use or purpose for which they are intended. Such a case, according to the authorities, is plainly distinguishable from that of an executed sale of a specific chattel selected by the purchaser upon which no implied warranty arises. The dis- tinction seems to be somewhat refined and technical at first view, but it is founded in sound reason, and is sustained by the authorities. Where the purchase is of a defined, ascertained article, the vendor performs his part of the contract by sending the article, and in the absence of fraud or some positive affirma- tion amounting to a warranty he is not liable for any defect in the qualitv. The purchaser, in selecting the particular article, relies upon his own judgment, and takes upon himself the risk of its answering his purposes. If he desires to secure himself I I PERTY. 5, however, aintiffs had can be no ct. It also .ifacturcr o£ lateiial and nd it is not e boxes fur- see whether er, but they at it is his the defend- jury to the y? In dis- jec' .vithout IS .; part of hivv, upon a mty as to its -, applies in al modifica- )y the courts )ne of these re goods are to the seller, tnably fit for Such a case, ishablc from lected by the s. The dis- nical at first tained by the 1, ascertained :t by sending itive affirma- any defect in icular article, mself the risk ecure himself GEUST V. JONES. 64: against loss he ought to require an express warranty. In the absence of such warranty the rule of caveat emptor must govern. Where, however, the purchaser does not designate any specific article but orders goods of a particular quality or for a particular purpose, and that purpose is known to the seller, the presumption is the puchaser relies on the judgment of the seller, and the latter, by undertaking to furnish the goods impliedly undertakes they shall be reasonably fit for the pur- pose for which they are intended, and he will be answerable for any defect in the material or in the construction by which the value is diminished. This rule applies with peculiar force where the seller is the manufacturer. Whether the seller would be held liable for a latent defect of which he is ignorant and against which human skill could not provide, is a question which does not arise here and need not be answered. Numerous cases may be found in the books illustrating these principles. It is only necessary, however, to refer to two or three of these bearing upon the question. One of these is Mason v. Chappell, 15 Gratt. 572. There it appeared that the defendant sold to the plaintiff one hundred an J fifty barrels of an article manufactured by defendant, called "Chappell's Fertil- izer," to be used on plaintiff's land. The defendant recom- memled the fertilizer as a valuable manur;% but there was no warranty and no allegation of fraud or deceit. The plaintiff, finding the alleged fertilizer unfit for use, brought his action for damages. This court held the action could not be main- tained. The decision was placed upon the ground that the transaction was a sale of a specific, ascertained article upon which there was no implied warranty, and the seller could not he held answerable for a defect in the quality in the absence of fraud or an express warranty. Judge Robertson, in delivering the opinion of the court, said: "If the plaintiff, relying on the defendant's skill and judgment, had applied to him to furnish a manure which would produce the effect attributed to 'Chappell's Fertilizer,' without specifying what particular kind of manure he wanted, and the defendant had accordingly furnisned an article which proved to be entirely worthless, there would be good ground for imputing an implied war- ranty." See, also. Chanter v. Hopkins, 4 M. & W. 399; 646 MODES OK OBTAIMNG TITLE TO PERSONAL PROPERTY. Benjamin on Sales, sec. 657 and cases cited; Story on Sales, sec. 373; 1 Smith's Lead Cas. Tlic case of Brown v. Edsin-ton, 2 Man. k Gr. 379, is one of a contrary character. There, the plaintiff being in want of a rope for the purpose of raisinj^ pipes of wine from his cellar, the defendant undertook to supply a rope for the purpose, but furnished a defective one, an the plaintiff brought his action for the damage sustained by the breaking of the rope and the conseciuent loss of a cask of wine. It was held that the defend- ant was liable upon the implied warranty. And where copper sheathing was ordered for the purpose of sheathing a vessel to be manufactured by the seller, and it proved to be worthless for any such i^iirpose, it was held that as the sellers knew the purposes to which it was to be applied, a warranty was impb.ed on their part that it was fit for the purpose intended. Jones v. Bright, 5 Bing. 533; 3 M"^^''^ ^^ ^'- '55! Story on Sales, 37/5. One of the most recent and best considered decisions on this subject it that of Jones v. Just, L. R. 3, Q. B. 197, 37 L. J. -90 McUor, J., in delivering the judgment, reviewed the decisions with great clearness and ability. Among other things he said where a manufacturer or a dealer contracts to supply an article which he manufactures or produces or in which he deals to be applied to a particular purpose, so that the buyer necessarilv trusts to the judgment or skill of the manufacturer or dealer," there is in that case an implied term of warranty that it shall be reasonably fit for the purpose to which it is to be applied. In such case the buyer trusts to the manufacturer or dealer, and relies upon his judgment and not upon his own. See Benjamin on Sales, sec. 655, and numerous cases cited in notes. . . 1 T->i These principles are decisive of the case in hand. 1 he tr-msaction was not a sale of an existing chattel selected by the plaintiffs, but an executory contract to manufacture and deliver from time to time, as they might be needed, a number or tob-icco boxes for a particular purpose known to the defendant. The defendant, in undertaking to furnish the boxes, impliedly aereed they should be reasonably fit for that purpose. Had the plaintiffs gone to the defendant's factory and themselves selected certain boxes such as they believed would answer their purposes, it is very clear the defendant would not be lia- 'ERTY. on Siiles, 179, IS one in want of his cellar, irpose, but his action ipe and the the defend- lere copper a vessel to ; worthless 3 knew the k^as implied Jones V. Sales, 376. 5ns on this ,7, 37 L. J. viewed the other things ts to supply n which he t the buyer lanufacturer arranty that 1 it is to be ufacturer or )n his own. ses cited in hand. The ccted by the ; and deliver number 01 c defendant. ;s, impliedly ipose. Had I themselves 3uld answer d not be lia- GERST V. JONES. 647 h]e, however worthless the boxes might be, because the plam- tiffs in that case must have relied on their own skill and judgment exclusively. Hut the plaintiffs made no selection; they left that to the defendant; they relied upon his skill and iud-rment as a manufacturer to furnish an article suited to the i.ushiess in which they were engaged. "If," said Tindall, C. T in IJrown v. Ed-vington, "the purchaser relies upon the judgment of the seller, and informs him of the use to which thelirticle is to be applied, the transaction carries with it an implied warranty that the thing furnished shall^ be fit and proper for the purpose for which it was designed." It is no answci to say that here the defendant was ignorant of the defect in the boxes, and that he used every proper pre- caution to guard against it. Neither the ignorance of the seller nor the exercise of care and diligence on his part can exempt him from liability when there is a warranty, whether it be express or implied. In Jones v. Bright, 5 King. 533, Best, C. J., said: "It is the duty of the court in administering the law to'la'y down rules calculated to prevent fraud ; to prevent per- sons who are necessarily ignorant of the qualities of a com- modity thev purchase, and to make it the interest of manufac- turers'and those who sell, to furnish the best article that can be supplied." By providing proper material a merchant may guiird ao-ainst defects in manufactured articles. As a mattei of fact the defendant did not exercise due care in the selection of his materials. The evidence shows that red oik md white oak timber was used in the manufacture of these boxes; that it was a long while exposed to the weather, and that red oak is very porous and will absorb much moisture when so exposed. These facts, I think, show the defendant did not give proper attention to the preparation of the timber for his boxes, and they fully explain the cause of the damage to the tobacco. It has been argued, however, that the plaintiffs were better judges of tobacco boxes than the defendant; that they had better opportunities of finding out the defect than he had, and they were grossly negligent in not examining the boxes. Now, it is proved to be exceedingly difficult to detect moisture m timber after it has been worked up into boxes. Suitable mate- rial is not obtained by merely inspecting the lumber-a very 64S Monns or onTAiN'ixr, title to pehsonal imiopeuiv. unsafe test in any case — but by properly scasoninle consequence of its breach. It is well settled that the jilaintiff is entitled, as a general rule, to recover such damages as are a natural and proximate result of the wrongful act of the defendant. I'cshine v. Sheppcrson, 17 Gratt. 472, 485. Numerous cases iiold that in an executory contract of sale to furnish an article for a particular use, if the article is not tit for such use, the purchaser is entitled to indemnity for the loss which the nonperformance of the contract has occasioned him, where the loss is the natural consequence of the breach com- plained of. Thus, in Brown v. Edgington, already cited, where the defendant sold the plaintiff a rope to be used in raising heavy weights, it was held that the plaintiff was entitled to recover the value of the rope and consequential damages for tlie loss of a cask of wine falling and lost from a defect in the rope. The case of Borradaile v. Hrunton, 8 Taunt. 535, was an action for a breach of warranty in the sale of a chain cable. Tiirough a defect in the cable an anchor of the plaintiff, to which it was attached, was lost. It was held that the plaintiff v.as entitled to recover the value as well of the lost anchor as of the cable. It is, however, useless to multiply ci'.ations in support of this doctrine. The cases on this subject are very numerous and may be found in Field on Damages, note to sec. 278; Benjamin on Sales, sec. 903, and notes; Sneed v. Ford, 103 Eng. C. L. 600; Passinger v. Thorburn, 34 N. Y. 635, and the authorities there cited. These decisions, and the principles they announce, I think fully sustain the plaintiffs' right to recover special damages for the injury to their tobacco as the natural, and proximate result of the defendant's failure to comply with his contract. If the defendant did not intend to be bound by the rule of law which holds him to an implied warranty he ought so to have pro- vided, and thus put the plaintiffs upon their guard. That rule (as was said by Park, J., in Jones v. Bright, 5 l?ing. 533), is of great importance, because it will teach man- ufacturers that they must not undersell each other by produc- 650 MODES OI- OBTAINING TITI li TO rEllSONAL I'HOl'KllTY. ing goods of an inferior quality, and tliat the law will protect purchasers who arc necessarily ignorant of the commocuty sold. CONSULT-Wilson V. Lawrence. 139 Mass. 321; lli),'ht v. Hacon, 126 Mass. 13; Morse v. .Stock Yards Co.. 21 Ore«. 289! I'acif.c Works Co. V. Newl.all, 34 Conn. 67; Lewis v. Hountree, 79 N- ^ 122- 28 Am. Kep. 387; Poland V. Miller, 95 I-ui. 3H7, •!« A'"- ««?• 7.3"; Hsk v. lank, .2 \vis. 276, 78 Am. Dec. 737! «^'"r"^ ^"B- Co. v. Williams, 48 Ark. 3^5; McClamrock v. Flint, 101 Ind. 278. § 108. Same— Articles sold by sample. BRADFORD v. MANLY. [13 Mass. 139; 7 Am. Dec. 122.] Supreme Judicial Court of Massachusetts, Suffolk, March Term, 1816. Assumpsit on divers special counts, to recover the difference in value between two casks of cloves, alleged to be sold by sample to the plaintiff, and the cloves actually delivered in vir- tue of the sale. At the trial, which was had on the general issue, before the chiet justice, at the la.st November term in this county, the plaintiff produced a bill of parcels of 6o3 pounds of cloves at one dollar fifty cents per pound, on which payment was acknowledged by the defendant to have been received in the plaintiff's note payable in sixty days. He then produced a witness, who testified that on the fourth of Janu- ary, 1S14, the defendant came to the plaintiff's store, with a sample of cloves in a paper, and asked the plaintiff if he wished to purchase some cloves. The witness examined the sample, and found the cloves to be of the best quality of Cayenne cloves; and the defendant said, at a subsequent time, that the sample he showed was of fair cloves. On the same day that the purchase was made and the bill of parcels given, the casks were removed to the plaintiff's store, the price being that of cloves of the best quality. It was in evidence, that the sample was not taken from the casks sold, but from an open barrel, out of which those casks had been tilled, they not being before quite full; but the de- I'KllTY. BHADFOIU) V. MANLY. ,vill protect looity sold. ■. Hacon, 126 c Works Co, 28 Am. Kep. k V. Tank, 12 48 Ark. 325; 'olk^ March le difference J be sold by /ered in vir- the general ibcr term in eels of 6o3 d, on which have been s. He then rth of Janu- store, with a if he wished the sample, of Cayenne me, that the tme day that en, the casks being that of ken from the 1 those casks ; but the de- fendant did not know from whence the sample came. The market price of this article having fallen immediately alter the sale, the plaintiff made no attempt to sell the cloves; and the casks were not opened until May, 1815, when, there being some application for the purchase of them, they were opened, and were found to contain a mixture of Cayenne cloves and an inferior and distinct species of the same article, the growth of the East Indies, in the proportion of one-third of the latter, which was worth from a fifth to a rpiarter less tlian the former. Whether the casks had been opened, or exposed, or mixed, while in possession of the plaintiff, were questions duly sub- mitted to the jury. Before instituting this suit, and after the defect was discovered, the plaintiff offered to retin-n the cloves, but the offer was not accepted. The defendant objected to the admission of any evidence, other than the bill of parcels (which was of cloves generally without designating the kind), to prove that any distinct species or quality of the article was sold. But the objection vv;;^ jverrnled, and the jury were instructed that, although no fraud was< proved or suggested, and no express warranty, other than what might be inferred from the exhil)ition of the sample, was proved: yet if they believed from the evidence, that the purchase was made upon the confidence that the whole quantity was represented by the sample ; and that it was the intention of the defendant so to represent by exhibiting the sample; and that the article, when sold and delivered, was materially different in quality and value from that which was shown in the sample ; they ought to find a verdict for the plaintiff, and assess in damages the difference in value at the time of the sale. The jury returned a verdict for the plaintiff, having found the facts specially as above sta- ted, and having also found that there was no fraud in the sale on the part of the defendant. The defendant excepted against the direction of the judge, and moved for a new trial on that ground, and also on account of the admission of parol evidence to prove the contract, Parker, C. J., delivered the opinion of the court, — The first point taken by the defendant's counsel is, that parol evi- dence was admitted, to control or explain the contract in wri- ting, which subsisted between the parties. '!^ 6^2 MODKS OK OBTAINING TITLE TO PERSONAL PROrERTY, The objection goes upon the supposition that a common bill of parcels, given upo'i or after the purchase of goods, is evi- dence, and the only proper evidence of such a contract. But it is not so. The bargain is usually ma'"e verbally, and with- out any intention that it shall be put in writing: and the bill of parcels is intended only to show that the goods have been pur- chased and paid for. It is seldom particular, or descriptive of the whole contract between the parties. Hut if it were not so, the paper introduced in this case is ambiguous with respect to the subject of the bargain; and the ambiguity is latent, so that parol evidence may be admitted to explain it. It states only that " 3 casks of cloves" were purchased: leaving it uncertain what kind of cloves, of which it appears in the case that there are at least two kinds, differing materially in quality and value. We think this objection was properly overruled. We may then come to the principal question, viz.: Whether the evidence in the cause proved a contract to sell cloves of a different kinil from those which were delivered. The defend- ant exhibited a samjile, by which the plaintiff purchased. Among fair dealers there could be no question but the vendor intended to represent that the article sold was like the sample exhibited: and it would be to be lamented, if the law should refuse its aid to the party who had been deceived in a purchase so made. The objection is, that no action upon a warranty can be maintained, unless the warranty is express; and that no other action can be maintained, unless there be a false affirmation respecting the quality of the article. If such were the law, it would very much embarrass the operations of trade, which are fre(juently carried on to a large amount by samples of the arti- cles bought and sold. The authorities cited by the defendant's counsel have been carefully looked into; and we think they do not militate with this decision, unless it be the c;ise of the bezoar stone, Chandelor v. Lopus, Cro. Jac. 4, Dyer, 75, which we think would not now be received as law in England: cer- tainly not in our country. The vendor sold the stone as and for a bezoar stone, to one unacquainted with such articles, and it turne^'. out to be of inferior value. The court held that no action would lie ; and some of the judges stated that even if :. PROrKRTY. t a common bill if goods, is evi- u contract. But bally, and with- : and the bill of 3 have been pur- 31- descriptive of f it were not so, with respect to is latent, so that It states only ving it uncertain e case that there uality and value. 1. , viz. : Whether sell cloves of a 1. The defcnd- ntiff purchased, n but the vendor u like the sample the law should ed in a purchase warranty can be id that no other false affirmation were the law-, it trade, which are iples of the arti- >unsel have been lot militate with 2 bezoar stone, 75, which we a England: cer- ;he stone as and uch articles, and nrt held that no ited that even if ■ A I ;,3 ■-.'t -i rRADFORD V. MANLY. 653 t the vendor had known that it was not a bezoar, and it had been so alleged, nn action could not be maintained without an ex- press warranty. The other case is that of Parkinson v. Lee, 3 East, 314. Tlierethehops sold were of the same kind and quality as tlie sample : but there was an unknown deterioration by fer- mentation, caused by the grower of the hops, and not by the vendor. Hops being usually sold in pockets, and the quality ascertained by sample, it was held that the innocent vendor was not responsible to the vendee, for an unknown inherent defect, without an express warranty. That case does not militate with our opinion in the case at bar. The fair import of the exhibition of a sample is, that the article proposed to be sold is like that which is shown as a par- cel of the article; it is intended to sa/e the purchaser the trouble of examining the whole quantity. It certainly moans as much as this: " The thing I offer to sell is of the same kind, and essentially of the same quality, as the specimen I give you." I do not know that it would be going too far to say that it amounts to a declaration, that it is equally sound and good. But it is not necessary to go so far in the present case ; and we are not disposed to question the correctness of the decision in Parkinson v. Lee. It is expressly found by the jury in the case at bar, that the cloves delivered were different in kind from those which com- ])oscd the sample, and inferior in value, not from decay or exposure ; but that there is a specific difference in the respec tive plants from which they are produced. Surely if a man were to exhibit to me a parcel of hyson tea as a sample, to in- duce me to ouy a chest, and I should pay him the price o£ hyson, and he should deliver me a chest of bohca or souchong, I might recover the difference in value, if he should refuse to do n^e justice, although he did iiot expressly warrant that the tea in the chest was the eame as that ift the sample. Indeed, the exhibition of a sample must, in all fair dealing, stand in lieu of a warranty or affirmation. It is a silent, symbolical warranty, perfectly understood by the parties, and adopted and used for the convenience of trade. The cpses must be very strong, to establish a principle so unjust, and so productive of distrust and jealousy among traders, as that contended for by the defendant's counsel. For 654 MODES OF OBTAINING TITLE TO PERSONAL PROPERTY. what purpose is the sample exhibited, unless it is intended as a representative of the thing to be sold? What would an honor- able merchant say if, when he took from a mass of sugar or coffee a small parcel, and offered to sell by it, the man who was dealing with him, should ask him if it was a fair sample, and call upon him to warrant it so? Mercantile honor would instantly take the alarm ; and if such questions should become necessary, there would be no need of that honor, which hap- pily is now general and almost universally relied upon. That there is not an unknown and. invisible defect, owing to natural causes, or to previous management by some former dealer, he may noi be presumed to affirm when he shows the sanple ; and as to these particulars an express warranty may be required, consistently with confidence in the fair dealing of the vendor. But that the thing is the same, generically and specifically, as that which he shows for it, he certainly undertakes, and if a different thing is delivered, he does not perform his contract, and must pay the difference, or receive the thing back and re- scind the bargain, if it is offered him. A case similar to this in principle came before me two or three years n no implied id. Howard GIROUX V. STEDMAN. 657 v. Emerson, 110 Mass. 320, and cases cited; Burnby v. Hoilett, 16 Mecs. & W. 645. While occasional expressions may be found (as in Van Hracklin v. Fonda, 12 Johns. 468) which sustain the plaintiffs' contention, we have found but one decided case which sup- ports it. In Van Bracklin v. Fonda, ubi supra, it is said that, ill a sale of provisions, the vendor is bound to know that they are sound at his peril; but the case shows that the defendant, who had sold beef for domestic use, knew the animal from wliich it came to be diseased. This had been found by the iiiry, and the remark is made in connection with the facts jiioved. The case of Hoover v. Peters, iS Mich. 51, does sustain the plaintiffs' contention, as it is there held that where articles of food are bought for domestic consumption, and the vendor sells them for that express purpose, the law implies a warranty that they are fit for such purpose, whether the sale he made by a retail dealer or by any other person. This case imposes a heavier liability on a person not engaged in the sale of provisions as a business than he should be called on to bear. The opinion is not supported by any citation of authorities. In a dissenting opinion by Mr. Justice Christiancy, it is said : "Had it appeared that he [the defendant] was the keeper of a meat market or butcher shop, and was engaged in the business ot selling meat for food, and, therefore, bound or presumed to know whether it was fit for that purpose, I should have con- curred in the opinion my brethren have expressed." If there is an exception to the rule of caveat emptor which grows out of the circumstances of the case, and the relations of buyer and seller, where the latter is a general dealer, and the former a purchaser for immediate use, there appears no reason why i% sliould be further extended. In the case at bar, the defendants were not common dealers in provisions, or market-men. They were farmers, selling a portion of the produce of their farms. No representations of the quality of the meat sold were made by them. In making casual sales from a farm of its products, to hold the owner to the duty of ascertaining, at his peril, the condition of the articles sold, and of implieciiy warranting, if sold with the siiowledge that they are to be used as food, that they are fit for 42 65S MODES OF ORTAINING TITLE TO PERSONAL PROPERTY. the purpose, imposes a larKcr liability than should be placed upon one who mav often have no better means of knowledn;e than the purchaser. The plaintiffs contend that the case of French v. Vinins;, 103 Mass. 13.^, is decisive in their lavor, but it appears to us otherwise. In that case, the defendant sold hay, which lie knew had been poisoned, for the purpose of beintr fed to a cow, although he had carefully endeavored to separate the damaged portion from the rest, and supposed he had succeeded. From the effects of eating the hay the cow ditJ, and the defendant was held liable. His knowledge of the injurv to the liay was certain and positive ; his belief that he had remedied the difViculty was conjectural and uncertain, and proved to be wholly erroneous. In the case at bar, while the defendant's herd had been exposed to hog cholera, there was evidence that a portion of it only had been affected; and, further, that, even if affected, the meat of the animals was not necessarily unwholesome. There was no evidence that the animals whose meat was sold had ever, so far as the de- fendants knew, actually had the disease, and the verdict of the jury has established that they were ignorant that the meat sold by "them was unwholesome. In French v. Vining the defend- ant knew what the condition of the hay had been, and this is a vital part of the case. He sold an article which he knew had been poisoned, and from which he had taken no effectual means to remove the poison. His belief or supposition that his effort had been successful could not relieve him from lia- bility for the consequences that ensued because it had been unsuccessful, if he sold the hay without informing the pur- chaser of the dangerous injury which it had received. Excep- tions overruled. CoKsiiT— V.in Bracklin v. Fonda, 12 Johns. 468, 7 Am. Dec. 339; Sinclair v. Hathawav, 57 Mich. 60, 58 Am. Rep. 3.7; Copasv. Provision Co 73 Midi. 541 ; Hoover v. Peters, iS Mich. 51 ; Moorehouse v. Com- stoc'k, 42 Wis.' 626; Moses v. Mead, i Denio, 37S, 43 Am. Dec. 676; Enerson v. Brigliam, 10 Mass. 177, 6 Am. Dec. 167 ; Howard v. Emerson, no Mass. 320, 14 Am. Rep. 60S; iNeedham v. Dial, 4 Tex. Civ. App. 141; Fairhank Canning Co. v. MeUgar, 118 N. Y. 2fx3, 16 Am. bt. Rep. 753; Ryder v. Neitge.. 21 Minn. 70; Best v. Flint, 58 Vt. 543* 5^ Am. Rep. 570. I Mi IPERTY. d be placed knowledge the case of their iavor, ic 'lefendaiit the purpose uleavorcd to supposed he [lay the cow nowk-dge of 3 belief that d uncertain, It bar, while holera, there ■fccted; and, animals was vidence that ar as the de- ,'crdict of the the meat sold r the defcnd- and this is a he knew had no effectual jposition that lim from ba- it had been ling the pur- ved. Excep- Ain. Dec. 339; pasv. Provision ehouse v. Corn- Am. Dec. 676; ard V. Emerson, Tex. Civ. App. 16 Am. St. Rep. Vt. 543, 56 Am. S I MODES OF OBTAIXIXG TITLE TO IMiKSONAL PKOl'KRTV. 659 J. The rcrforviancc of the. Contract of Sale. § 110. Mutual conditions precedent. See I'aul v. Rccd, ante, p. .lS6. § 111. Place of delivery. JANNEY V. SLEEPER. [30 Minn, ico.] Supreme Court of Minnesota, 1883. MiTCHEM-, J.— The plaintiffs were hardware merchants whose residence and place of business was in Minneapolis. The defendant resided at Brainerd. The plaintiffs, at their place of business in Minneapolis, agreed to sell and deliver to defendant a quantity of glass. At the time of making the con- tract plaintiffs did not have the goods on hand in stock, but had to purchase them in St. Louis in order to meet their con- tract. The evidence as to the place where the goods were to be delivered to defendant was conlbcting; that on the part of plaintiffs tending to prove that they were to be delivered in Minneapolis on the cars, while that on the part of defendant tended to prove that the goods were to be delivered at Brain- erd. The court under the objection and exception of defend- ant, instructed the jury "that the burden of proof was upon defendant to show by a preponderance of testimony that the glass was to be delivered to him at Brainerd and not on the cars at Minneapolis, as claimed by the plaintiffs." We see no error in this. If no place be designated by the contract the general rule is that the articles sold are to be delivered where they are at the time of sale. The store of the merchant, the shop of the manufacturer, and the farm of the farmer at which the commodities sold are deposited or kept, must be the place of delivery when the contract is silent upon the subject ; at least when there are no circumstances showing that a different place was intended. This is a rule of construction predicated 66o MODES OF OBTAINING TITLE TO PEHSONAL PROPERTY. upon the presumed understiinding of the parties when making the contract. Benj. Sales, loiS, io23; 3 Chit. Cent. 1201, 1203; 3 Kent, Comm. 505; Middlesex Co. v. Osgood, 4 Gray, 447; Smith v. Gillett, 50 111. 390; Hamilton v. Cal- houn, 3 Watts, 139; LobdcU V. Hopkins, 5 Cow. 516; Rice V, Churchill, 3 Denio, 145; Wilmouth v. Patton, 2 Bibb. 3S0; Li.nsley v. Burns, 10 Bush, 87. This rule is not changed by the fact that plaintiffs did not have the goods on hand at their place of business at the time of the sale, but had to procure them elsewhere in order to fulrtll their contract. Potentially and prospectively the goods were as if then situate in their store at Minneapolis. Hence in the absence of any evidence as to the place of delivery it would be presumed to be at Minneapolis. To overcome this presump- tion some evidence would be required tending to show that some other place was agreed upon. This was in effect all that the language of the court implied when he instructed the jury that the burden of proof was upon defendant to show that the goods were to be delivered at Brainerd and not Minneapolis. In view of their verdict the jury must necessarily have found against defendant upon those issues upon which depended his right to recover any damages at all. Therefore it is unneces- sary to consider whether the court erred in his rulings as to the measure of damages. One or two other exceptions were taken to the rulings of the court below upon the trial which we have examined, but find no error. They are not, however, in our opinion, of suilicient importance to require to be here consid- ered at length. Judgment affirmed. CoNSLLT— Kraft V. Hurtz, 11 Mo. 109; Gray v. Walton, 107 N. Y. 254; Woods V. Dial, 12 111. 73; Smith v. Wheeler, 7 Ore. 49, 33 Am. Rep. 69S; Smith V. Gillett, 50 111. 290; Lucas v. Nichols, 5 Gray, 309; Wood V. Manly, 11 Ad. & Ell. 143. mm EUTY. MODES Ol- OIITAIMNO TITLE TO I'EIISUNAL I'UOI'EIITV. 06 1 n making nt. I20I, ISfJOOtl, 4 )ii V. Ciil- , i6; Rice ;ibb. 2S0; 's did not he time of to fulfill Dods were nee in the would be presump- show that ict all that d the jury V that the eapolis. lave found lended hi& 5 unneces- s as to the ,vere taken h we have er, in our Me consid- t affirmed. 1, 107 N. Y. 49. 33 Am. ; Gray, 309; § 112. Delivery to carrier. MAGRUDER v. GAGE. [33 Md. 344; 3 Am. Rep. 177-] CouH of Appeals of yfarylaud, i8^0. RoniNsnx, J.— The appellants, residents of Annapolis, wrote to the appellees, ice dealers, in Hoston, to know upon what terms they would sell them a cargo of ice, in answer to which they received the following reply: "For a'cargo to be shipped before the tenth of July we shall charge you $5 per ton, and will get the freight as low as pos- sible." By letter of July i, 1S63, the appellants directed the appel- lees to send a cargo of one hundred and fifty tons, and author- ized them to get the freight as low as possible. On the thirteenth of July the appellees wrote to the appellants advising them of the shipment, inclosing account for same, and the bill of lading. This letter with the inclosed papers was received by the appellants in due course of mail. By the bill of 'ading it appears that the ice was shipped in good order and condition on board of the schooner Rio, lying in the port of Boston, and bound for Annapolis to be delivered in like good order and condition to the appellants, or to their assigns, he or they pay- ing the freight and accustomed average. The schooner encountered rough weather, and was com- pelled to put into New York with damaged sails. After refit- ting she resumed her voyage and reached Norfolk on the eighteenth of August in a sinking condition. The remnant of he" cargo was sold under the captain's supervision, and the surplus arising from the proceeds of sale, after the payment of freight and charges amounting to $222, was handed over to the Appellants, and by them remitted to the appellees, who refused to receive the same. This is an action of contract brought by them against the appellants to recover the value o£ the cargo of ice. 66Z MODES OF OnTAINMNG TITt.K TO riCKSON'AI. I'KOl'K UT Y. The main question in ll.is appeal, and one wliich we tliink decisive of the case, arises upon the following prayer, granted 1)V the court: . '"If tlie jury find from the evidence that the phnntiffs u; iSOj xvcre partners in trade and dealers in ice, under the name and firm of Addison, (ia-e ."v: Company, in the city of Hoston, Mas- sachusetts, and tliat tlRMJefendants were tradin- under the name of Mai' uinAiMNci irn.K lo j'EUsonai. imkipkh iy. althoii<,'!i. as a Rem-ral nilo, wlicn' (ho jjooils are dolivcrcd to a carrier, tlic ct)iiNi;^ucc is tlic proper person to l)riii;; the action ji{,'aiiist the earner, yet if tlie consignor makes a special roii- tract witli the hitter for the carriajje, siich a contract supersedes the necessity of siiowinij tiie ownership in the {joods, and tiie consijjnor may maintain tiie action a^ain^t tiie carrier, tlionj^li the goods may liave l)eeii the property of tiie cousi',Miee. Tlie Lord Chancelh)r, however, said: "It is no donlit true, as a jjeneral rule, that the delivery by the consignor to the carrier is a delivery to tlie consi^rnee, and that the risk is, after such delivery, ihe risk of the consignee. This is so if, without designatingthe particular carrier, the consignee directs the goods shall he sent by the ordinary conveyance; the delivery to the ordinary carrier is then a delivery to the consignee, and the consignee incurs all the risk of the carriage." In that case evidence was offered that, by the terms of the contract, the seller was to deliver the puncheon on the ([uay at Ncwcastlc-on- Tyne before the title was to pass to the purchaser; and it was held that the lord president in the trial below erred in stating it as a rule without an exception because the freight and insur- ance were paid by the consignor who charged the consignee with their amount, the risk was, therefore, necessarily witii the consignee — that there was consequently no right to inquire what was the particular transaction between the parties. In other words, the court below had erred in excluding from the jury the agreement between the parties in regard to the delivery of the puncheon. But no such objection can be urged against the prayer of the court in this case. The question as to whether there was any other agreement between the appellants and appellees in regard to the sale and delivery of the ice than that to be found in the correspondence and bill of lading was fairly submitted to the jury and the plaintiff's right to recover upon the finding of the facts set forth in the prayer was based upon the express proviso that there was no other agreement in regard to the delivery of the ice. In Blanchard v. Page, 8 Gray- 2S1, the action was also brought by the consignor against the carrier upon a special contract, and the precise question in the case, says Shaw, C. J., is "whether the plaintiffs named as shippers of the goods in [■ 1 il'Ell lY. livorcd to a the act ion pccial roii- •iuporsedes (Is, and till' icr, tliou}ili ^iiee. Tlic t true, as a ic carrier is after such if, without ts tlie jjoods ivcry to the ce, and the n that case Dntract, the wcastlc-on- and it was in statinUU.K.S OK OHTA.N.NO TITLE TO PKUSONAI. PKOrKUTV. ..Shipment bv steanuT or steamers durins February," or in case of ice preventing shipment, then immed.ate y upon „p,„in, of navi,.Uion. and one thousand, one hundred . thirtv-nine .luarters were shipped by one steamer m tunc and three tliousand, tlnee hundred and sixty-one cp.arters we,c shippe.l too h,te, it was l>eld that the buyer was i.ound to accept the one thousand, one hnn.lred and thirty-mne quarte s and was liable to an action by the seller for refuMUf, to accc, then. Such bein. the condition of the law of ^-^'^ J declared in the lower courts, the case of Bovves v. Shan 1 after conilictin^ decisions in the queen's bench ; -.SKn. a.u the court of appeal, was finally determu^ed by the house of lords, r q. B. Div. 47°; - Q- B- Div. .^^^ 2 App. Ca. .-= In that case, two contracts were made m London, ea h fo, the sale of three hundred tons of "Madras r.ce, to be shipped at Madras or coast for this port during the n.on.hs of March -^' April, 1S74, per Rajah of Cochm. 1 be s.x hnndred"tons'mied eight thousand, two hundred bags, o ^vhich seven thousand, one hundred and twenty bags were put on board, and bills of lading signed in February; and for the rest, consisting of one thousand and thirty bags put on boau in February, and fifty in March, the bill of ladmg was s.gned in March. At the trial of an action by the seller agamst the buyer for refusing to accept the cargo, evidence was given that rice shipped in February would be the sprung crop an^ ouite as good as rice shipped in March or Apr.l. \ et the house of lords held that the action could not be mauUamed, because the meaning of the contract, as apparent upon its face, was that all the rice must be put on board m March and A 1 or in one of those months. In the opinions there delivered the general principles underlying this class of cases are most cleaHy and Lisfactorily stated. It will be sufficient to quote a few passages from two of those opinions. Lord Chancellor Cairns said: "It does not appear to me to be a question for your lordships, or for any court, to consider 'Lther that is a contract which bears upon the face of it son reason, some explanation, why it was made in that form, and why tie stipulation is made that the shipment should be during Thele particular months. It is a mercantile contract, and mer- chants are not in the habit of placing upon their contracts stip- i« rKUTV. NOIIUIXGTON V. WKIUIIT. 675 ry," or, in if upon tlie Linilred ami n time, and alters were s hound to no ciuarters, ng to accept Enj^land as 5 V. Shand, division and he house of App. Cas. .ondon, each rice, to be le months of The six ed ba<;s, of ags were put and for the put on board r was signed r against the ce was given ing crop, and )ril. Yet the e maintained, upon its face, •ch and April, here delivered :ases are most icient to quote )pear to me to iirt, to consider face of it some that form, and lould be during 1 tract, and mer- contracts stip- ulations to which they do not attach some value and import- ance." 2 App. Cas. 463. "If it be admitted tiiat llie literal meaning wo\iid imply that the whole (piantity must be put on hoard during a specified time, it is no answer to that literal meaning, — it is no observation wliich can dispose of, or get rid of, or displace, that literal meaning, — to say that it puts an additional burden on the seller without a corresponding benefit to the purchaser; that is a matter of which the seller and pur- chaser are the best judges. Nor is it any reason for saying that it would be a means by which purchasers, without any rial cause, would frequently obtain an excuse for rejecting contracts when prices had dropped. The nonfulfillment of anv term in any contract is a means by which a purchaser is able to get rid of the contract wiien prices have dropped ; but that is no reason why a term which is found in a contract should not be fulfilled," Pages 465, 466, "It was suggested tliat even if the construction of the contract be as I have stated, still if the rice was not put on board in the particular months, that would not be a reason which would justify the appellants in having rejected the rice altogether, but that it might afford a ground for a cross-action by them if they could show that any particular damage resulted to them from the rice not having been put on board in the months in question. My lords, I can not think that there is any foundation whatever for that argument. If the construction of the contract be as I have said, that it bears that the rice is to be put on board in the months in question, that is part of the description of the subject- matter of what is sold. What is sold is not three hundred tons of rice in gross or in general. It is three hundred tons of Madras rice to be put on board at Madras during the particular months," "The plaintiff, who sues upon that contract, has not launched his case until he has shown that he has tendered that thing which has been contracted for, and if he is unable to show that, he can not claim any damages for the nonfulfill- ment of the contract." Pages 467, ^68. Lord Blackburn said: "If the description of the article tendered is different in any respect, it is not the article bar- gained for, and the other party is not bound to take it. I think in this case what the parties bargained ior was rice, shipped at Madras or the coast of Madras. Equally good rice 676 MODES OF Oin-AIN.NG TIIXK TO rEUSGNAL rUOI-KK 1 V. ,„i.l,t have been shipped a little to the north or a little to th.- .outh of the coast of Madras. I do not cit.itc know what the ,„.,„Hlarv is. and prohahly ec,ually f^ood rice might have been .hinncdin rel.ruary as was shippe.l in March, or eqnally good rice nr.L'ht have been shipped in May as was shipped in Aprd and I dare say equally goo.l rice might have been put on board Muother ship as that which was put on board the Uajah of Cochin Mut the parlies have chosen, for reasons best known to themselves, to say: We bargain to take rice, shipped ui this particular region, at that particular time on board that nuticuh.r ship; and before the defendants can be compelled to tike ■mvlhin- in fulllllmcnt of that contract it must be shown not merelv That it is equally good, but that it is the same article as'tliey have bargained for, otherwise they are not bound to take it." 3 App. Cas. 480, 4S1. Soon after that decision of the house of lords, two cases were determined in the court of appeal. In Renter v. Sala, 4 C. P. Div -0 under a contract for the sale of "about twenty-hve tons "(more or less) black pepper, October -' November shipment, from Penang to London, the name of the vessel or vessels, marks, and full particulars to be declared to the buyer in writing within sixty days from date of bill of ladmg, the seller withm the sixty days, declared twenty-five tons by a particular vessel, of which only twenty tons were shipped .n November, and five tons in December; and it was held that the inner had the right to refuse to receive any part of the pepper. In llonck V. Muller, 7 Q. B. Div. 92, under a contract for the sale of two thousand tons of pig-iron, to be delivered to the buyer free on board at the maker's wharf "in November, or equally over November, December, and January next," the buyer faded to take iny iron in November, but demanded delivery of one third in December and one third in January; and it was held that the seller was justified in refusing to deliver, and m giving notice to the buyer that he considered the contract as canceled bv the buyer's not taking any iron in November. The plaintiff in the case at bar greatly relied on the very recent decision of the house of lords in Mersey Co. v. Naylor, 9 App. Cas. 434. affirming the judgment of the court of appeal in o O B Div. 64S, and following the decision of the court ot common pleas in Freeth v. Burr, L. R. 9 C P. 20S. But the point Ill Y. tie to the what the ave been ;illy good in April, on board Rajah of St known lipped ill oard that npellcd ti> he shown the same { are not ;ascs were a,4C.P. wcnty-Hve No%ember vessel or the buyer cling," the tons by a shipped in ild that the pepper. In r the sale of buyer free jually over 2V failed to ;ry of one t was held id in giving as canceled on the very V. Naylor, 9 of appeal in he court of 3ut the point NOKHINdlON V. WIlKillT. 677 there decided wastliat the faiii'iie of the buyer to pay for the tirst installment of tiie goods upon deliseiy docs not, unless the cir- cumstances evince an intention on liis part to be no longer bound by tlie contract, entitle the seller to rescind tlie contract, anil to decline to make further deliveries under it. And the grounds of the decision, as stateil by Lord Chancellor Sel- bourne in moving judgment in tlie house of lords, are applica- ble only to the case of a failure of the buyer to pay for, and not to that of a failure of the seller to deliver the lirst install- ment. The lord chancellor said: "The contract is for the purchase of five thousand tons of steel blooms of the company's manufacture; therefore, it is one contract for the purchase of that quantity of steel blooms. No iloubt, there are subsidiary terms in the contract, as to the time of delivery, — 'delivery one thousand tons monthly, commencing January next,' — and as to the time of payment, — 'payment net cash within three days after receipt of shipping documents,' — but that does not split up the contract into as many contracts as there shall be deliv- eries for the purpose of so many distinct quantities of iron. It is quite consistent with the natural meaning of the contract that it is to be one contract for the purchase of that quantity of iron to be delivered at those times and in that manner, and for which payment is so to be made. It is perfectly clear that no pitrticular payment can be a condition precedent of the entire contract, because the delivery under the contract was most cer- tainly to precede payment; and that being so, I do not see how, without express words, it can possibly be made a condition precedent to the subsequent fulfillment of the unfulfilled part of the contract by the delivery of the undelivered steel." 9 App. Cas. 439. Moreover, although in the court of appeal dicta were uttered tending to approve the decision in Simpson v. Crippin, and to disparage the decisions in Hoare v. Rennie and Ilonck v. Mul- ler, above cited, yet in the house of lords Simpson v. Crippin was not even referred to, and Lord Blackburn, who had given the leading opinion in that case, as well as Lord Bramwell, who had delivered the leading opinion in Ilonck v. Muller, distinguished Hoare v. Rennie and Ilonck v. Muller from the case in judgment. 9 App. Cas. 444, 446. 67S MODKS OK OnTAININO TITt.K TO PKItSONAI. I'lK H'KIITY, Tpon a review of tlu- i:n;,'lisli decisions, the rule lai.l .lown ill tlK- earlier cases of lloare v. Keiinie ami Coddin^toii v. I'alc- „l.,u„, as well as in the latter cases of Keuter v. Sala an.l llonck V. Muller, appears to us to be supported by a greater weight of authority than the rule stated in the intermediate cases of Simpson v. Crippin an.l Hrandt v. Lawrence, and to accord better with the general principles allirmed by the house of lords in Howes v. Shand. while it in no wise contravenes the decision of that tribunal in >.ersey Co. v. Naylor. In this country there is less judicial authority upon the ciuestion. The two cases most nearly in point that have come to our notice are liill V. lilake, 97 N. Y. 216, which accords w..h Bowes v. Shand, an.l King I'hilip Mills v. Slater, 12 R. I. 82, which approves and f.dlows Hoare v. Kennie. The recent cases m the supreme court of IV-nnsylvania, cited at the bar, support no other concluMon. In Shinn v. liodine, 60 Pa. St. iSi, the point decided was that a contract for the purchase of eiRht hun- dred tons of coal at a certain price per ton, "coal to be deliv- ered on board vessels as sent for durinfj the montlis of August and September," was an entire contract, under which nothin^">'»' /'''"^ •\ ^ , Judgment alhrmed. cited. '' CoNHULT-nruce V. Peterson, ^ Johnn. 534; U'>' l'-'''" O'l C"- v. Ih.L'hev, S6I'«. St. 7"; l'"^vn3 v. Marsh, 2., Conn. ,.9; '-■•'k.n v. l.,„a,er Co., 4: Mich. .9''.; Cohen v. I'emberton S3 Conn "" ^-- ,„«er V. Crocker, (>2 N. Y. .5> I Urawley v. U. .S.. 9^. I . S. 7. - l^'"« Philip MliU Co. V. Slater, .2 U. I. H:, 34 A'"- K«P- 603; l''erBon v. Crooks, 115 N. Y. 539. «2 A'"' •"*'■ '^'-'l'' ^^^ ' 6. The Rcwcdics for the Dreaeh of the Contract of Sale. § 114. The seller's remedles-aotion for purchase price. SlIAWIIAN V. VAN NEST. [25 Ohio St. 490-] Sitpretuc Court of Ohio, 1874. Motion for lej ve to file a petition in error. Action bv Peter Van Neat against Reasin W. Shawhan to recover on a contract by which he agreed to make for Shawhan a curiage in accordance with his directions for $700, and have the same ready for delivery at his shop October i, 1871, ni consideration whereof Shawhan agreed to accept the carru-ige at the shop and pay the agreed price. He alleged the tender of the carriage October first, and the refusal of Sh.whan to '.ccept or pay for it. The evidence established the allegations of the complaint. The court instructed the jury that, if they found the issues for the plaintiff they should give him a verdict for the contract price of the carriage, with interest from the time the money should have been paid. Shawhan requested the court to give to the jury the following special instructions: (O "If in this case, the evidence shows that the defendant ordered the plaintiff to make for him a carriage, and agreed to take dr receive it when finished, and to pay a reasonable price therefor, and the plaintiff did, in pursuance of such order and ac^reement, make such carriage, of the value of seven hundred 6So MODES OF OBTAINING TITLE TO I'ERSONAL PROPERTY. dollars, and have the same in readiness for delivery at his shop, of which the defendant had notice, and the defendant then failed, netjlected, and refused to take, receive, or pay for said carriao-e, though requested so to do by the plaintiff, these will not authorize you to render a verdict for the plaintiff for the price or value of the carriage." (2) "If the pliintiff has proved the making of the carriage for the defendant, and the refusal of the latter to receive and pay for it, as alleged in the petition, then he can only recover for the damages or losses he has actually sustained by reason of this refusal of the defendant, which is the difference between the agreed price and the actual value." These instructions the court refused to give, and Shawhan excepted. The jury found for Van Nest, and gave him the contract price of the carriage, with interest. GiLMORE, J.— The only question to be determined in this case is: Did the court err in refusing to give to the jury the special iustructions requested by the defendant on the trial below? The authorities cited by counsel for the parties respectively, are not in harmony with each other on this ques- tion. Some of those cited by the plaintiff in error (defendant below) show clearly that under the pleadings and practice at common law, there could be no recovery under the common counts in assumpsit, for goods sold and delivered, or for goods bargained and sold, where no delivery sutlicient to pass the title from the vendor to the vendee had been made. And further, that in this form of action, proof of a tender of the goods by the vendor to the vendee, or leaving them with him against his remonstrance, would not constitute such a deliveiy as would pass the title and enable the vendor to recover. While these may be regarded as settling the rules of pleading and evidence on the trial of particular cases, and therefore not decisive of the question when raised under issues so formed as to present it freed from the technicalities of plead- ing, still there are other cases cited on the same side, which declare the rule to be as follows : Where an action is brought bj . 'e vendor against the vendee, for refusing to receive and pay for goods purchased, the measure of damages is the- actual loss sustained by the vendor in consequence of the vendee refusing to take and pay for the goods, or, in other words, the PROPERTY. SHAWIIAN V. VAN NEST. 68 1 very at his shop, defendant then I or pay for said intiff, these will plaintiff for the the pliintiff has fend ant, and the as alleged in the mages or losses refusal of the he agreed price he court refused id for Van Nest, e, with interest. etcrmined in this ■e to the jury the ant on the trial for the parties licr on this ques- srror (defendant igs and practice very under the ind delivered, or very sutlici'ent to had been made, jf of a tender of aving them with :onstitute such a le the vendor to ttling the rules of icular cases, and iised under issues licalities of plead- same side, which action is brought le to receive and lages is the actual ce of the vendee I other words, the difference between the contract price and the market price at the time and place of delivery. In the authorities cited by the plaintiff in error, no distinction is drawn, or attempted to be drawn, between the sale of goods and chattel;' already in exist- ence, and an agreement to furnish materials and manufacture a specific article in a particular way, and according to order, which is not yet in existence ; the theory being, that in neither case would the title pass, or property vest in the purchaser, until there had been an actual delivery, and th.it until the title had passed, the vendor's .remedy was limited to the damages he had suffered by reason of the breach of the contract by the vendee, which were to be measured by the rule above stated. In this case it is not necessary to determine whether or not a distinction, resting upon principles of law, can be drawn between ordinary sales of goods in existence and on the market, and goods made to order in a particular way, in pursuance of a contract between the vendor and the v ^idee. The case here is of the latter kind, and the question is, whether the plaintiff below was entitled to recover the contract price of the carriage on proving that he had furnished the materials, and made and tendered it in pursuance of the terms of the contract. Counsel for the defendant in error (plaintiff below) has cited a number of authorities, in which the questions presented and decided arose upon facts similar to those in this case, and upon issues presenting the question in the same way ; and as the conclusions we have arrived at are based upon this class of authorities, some of them may be particularly noticed. In Bement V. Smith, 15 Wend. 493, the defendant employed the plaintiff, a carriage maker, to build a sulky for him, for which he promised to pay eighty dollars. The plaintiff made the sulky according to contract, and took it to the residence of the defendant, and told him he delivered it to him, and demanded payment, in pursuance of the terms of the contract. The defendant refrsed to receive it. Whereupon the plaintiff told him he would leave it with Mr. De Wolf, who lived near; which he did, and commenced suit. On the trial it was proved that the sulky was worth eighty dollars, the contract price. The court charged the jury that the tender of the carriage was substantially a fulfillment of the contract on the part of the plaintiff, and that he was entitled to sustain his action for the 6S2 MODF.S OF OBTAIN'ING TITLE TO PERSONAL PROPERTY. price agreed upon between the parties. The defendant's coun- sel reciuested the court to charge the jury that the measure of damages was not the sulky, hut only the expense of taking it to the residence of the defendant, delay, loss of sale, etc. The judge declined to so charge, and reiterated the instruction that the value of the article was the measure of damages. The jury found for the plaintiff, with eighty-three dollars and twenty- six cents damages, being the contract price with interest. The charge to the jury was sustained by the supreme court of New York. In Brdlentine et al. v. Robinson et al., 46 Penn. St. 177, an agreement was made between the plaintiffs and defendants, whereby the plaintiffs were to provide materials, and construct for the defendants a six-inch steam engine, with boiler and Gifford injector and heater, in consideration whereof the defendants were to pay plaintiffs $535 in cash on the com- pletion thereof. The plaintiffs complied with and completed the contract in all respects on their part, but the defendants refused to pay according to contract. On the trial, the plain- tiffs proved the contract, and the performance of it on their part, and that the engine was still in their hands. The defendants' counsel asked the court to instruct the jury "that the proper measure of damages in this case is the differ- ence between the price contracted to be paid for the engine and the market price at the time the contract was broken." The court declined to charge as requested, and instructed the jury that the measure of damages was the contract price of the engine, with interest. There was a verdict for the plaintiffs for the contract price. The case was taken to the supreme court, and the error assigned was the refusal of the court to give the instructions requested by the defendant. The supreme court affirmed the judgment in the case below. It will be seen that these cases are very similar, and presented the same question, and in the same manner that the question is presented in this case. Graham v. Jackson, 14 East, 498, decides the point in the same way. Mr. Sedgwick, in his work on Damages, side page 2S0, in speaking on this subject, says: "Where a vendee is sued Tor nonperformance of the contract on his part, in not paying the contract price, if the goods have been delivered, the measure of damages is, of «■ lOPEHTY. SHAWHAX V. VAN NEST. 6S3 ndant's coiin- ; measure of ise of taking ale, etc. Tlie stniction that ;s. The jury and tvventy- nterest. The court of New n. St. 177, an d defendants, and construct ith boiler and whereof the on the com- md completed :he defendants ial, the plain- of it on their struct the jury ;e is the differ- the engine and Token." The ucted the jury t price of the r the plaintiffs to the supreme of the court to the case below, and presented the question is 14 East, 498, dgwick, in his on this subject, )rmance of the ict price, if the iamages is, of '!• f ourse, the price named in the agreement ; but if their posses- sion has not been changed, it has been doubted whether the rule of damages is the price itself, or only the difference between the contract price and the value of the article at the time fixed for its delivery. It seems to be well settled in such cases that the vendor can resell them, if he sees fit, and charge tlie vendee with the difference between the contract price and that realized at the sale. Though perhaps more prudent, it is not necessary that the sale should be at auction; it is only requisite to show that the property was sold for a fair price. But if the vendor does not pursue this course, and, without reselling the goods, sues the vendee for his breach of contract, the question arises which we have already stated, whether the vendor can recover the contract price, or only the difference between that price and the value of the goods which remain in the vendor's hands ; and the rule appears to be that the vendor can recover the contract price in full." In Iladley v. Pugh et al., Wright, 554, the action was '•assumpsit on a written agreement between the parties, for the .lefendants to take all the salt the plaintiff manufactured between the second of June, 1831, and the first of January, 1S32, to be delivered at the landing in Cincinnati, from time to time' as the navigation of the Muskingum and Ohio should permit, and to pay forty-five cents a bushel." The plaintiff proved the agreement, and the offer to deliver to the defend- ants three hundred and fifty barrels of salt, which the defend- ants refused to receive. There was an issue in the case, as to whether the contract had been previously fulfilled and aban- doned by the parties. The court (Lane, J.) charged the jury thrif !f the contract had not been "fulfilled or abandoned, and the plaintiff tendered the salt under the contract, which was refused, he had a right to leave it for the defendants and recover the value." The only case I have examined in which the authorities on this point are reviewed, is that of Gordon v. Norris, 49 N. H. -6. The case is too lengthy and complicated to attempt to -ivc an abstract of it here, but the point under consideration was involved : and although the learned judge criticises the law as laid down by Mr. Sedgwick, and even shows that the authorities he quotes in support of his position do not sustam <5S4 MODES OF OBTAINING TITLE TO I'EUSONAL PKOPERTy. him, for the reason pointed out, yet he says that there is a dis- tinction between the case of Bcmcnt v. Smith, and the ordinary cases of goods sold and delivered — viz., "the distinction between a contract to sell jjoods then in existence, and an agree- ment to furnish materials and manufacture an article in a par- ticular way and according to order, which is not yet in exist- ence." He recognizes Bement's case and others of the same class as exceptions to the general rule which is to be applied in the sale of ordinary goods and merchandise which have a fixed market value; and in the syllabus of the case, the distinction is kept up and stated as follows: "When the vendee refuses to receive and pay for ordinary goods, wares, and merchandise, which he has contracted to purchase, the measure of damages which the vendor is entitled to recover is not ordinarily the contract price for the goods, but the difference between the contract price and the market price or value of the same goods at the time when the contract was broken. "But when an artist prepares a statue or picture of a partic- ular person to order, or a mechanic makes a specific article in his line to order, and after a particular measure, pattern, or style, or for a particular use or purpose — when he has fully performed his part of the contract, and tendered or offered to deliver the article thus manufactured according to contract, and the vendee refuses to receive and pay for the same, he may recover as damages, in an action against the vendee for breach of the contract, the full contract price of the manufactured article." As has been said, we are not called upon now to determine whether the distinction as drawn in the clauses quoted, is sound on principle or not; but be that as it may, we recognize the law applicable to the case before us as being correctly stated in the clause last quoted. Judge Swan, in his excellent "Treatise" [lo Ed., 7S0], in speaking of the effects of a tender upon the rights of the buyer and seller, and of the damages in such case, says: "The gen- eral rule in relation to the rights of a seller, under a contract of sale, where he has tendered the property, and the buyer refuses to receive it, is this: The seller may leave the property at some secure place, at or near the place where the tender ought 'ROPERTV. there is a dis- id the ordinary he distinction , and an agrec- rticle in a par- it yet in exist- rs of the same 3 be applied in :h have a fixed le distinction is y for ordinary »^ i contracted to ndor is entitled the goods, but i market price e contract was .ire of a partic- ^| !cific article in re, pattern, or :n he has fully d or offered to o contract, and same, he may iidee for breach manufactured V to determine ises quoted, is y, we recognize being correctly 3 Ed., 7S0], in hts of the buyer ^s: "The gen- ler a contract of le buyer refuses the property at he tender ought SHAWIIAX V. VAN- NKST. 6Ss to be and is made, and recover the contract price ; or he may keep it at the buyer's risk, using reasonable diligence to pre- serve it, and recover the contract price and expenses of proserv- in- and keeping it ; or he may sell it, and recover from the Liner the difference l)etvvcen the contract price and the price ;it which it fairly sold." The rule as thus laid down was first jHililished in 1836, two years after the decision in Iladley's case, ;il,ove referred to, which was substantially followed by .bulge Swan in laying it down. It does not appear that either the decision or the rule as laid down has ever been questioned in Oiiio. It will be perceived that Judge Swan lays down the rule generallv as applicable to all sales of chattels in the ordi- nary 'course of trade, without intimating any such distinction as tliat drawn in Gordon v. Norris. We sanction and apply the rule in the determination of the particular case before us. When the plaintiff below had completed and tendered the car- riiiije in strict performance of the contract on his part, if the dcf'endant below had accepted it, as he agreed to do, there is no question but that he would have been liable to pay the full contract price for it, and he can not be permitted to place the plaintiff in a worse condition by breaking than by performing tlie contract according to its terms on his part. When the plaintiff had completed and tendered the carriage in full per- formance of the contract on his part, and the defendant refused to accept it, he had the right to keep it at the defendant's risk, using reasonable diligence to preserve it, and recover the con- tract price, with interest, as damages for the breach of the con- tract by the defendant. Or, at his election, he could have sold ilie carriage for what it would have brought at a fair sale, and have recovered from the defendant the difference between the contract price and what it sold for. The court below did not err in refusing to give to the jury the special instructions requested by the defendant below. Motion overruled. CovsuLT-Bement V. Smith, 15 Wend. 493; Mason v. Decker, 7^- N- Y S95 28 Am. Rep. 190; Wade v. Moftatt, 21 111. no, 74 Am. Dec. 79; (iarrison v. Madigan, 15 Wis. 144, 82 Am. Dec. 659 i Putnam v. Gled- den, 159 Mass. 47. 6S6 MODES OF OIITAININU TITLE TO PERSONAL I'KOl'EUTV. § 115. Same-Re-sale. DUSTAX V. McANDREW. [44 X. Y. 72.] CoDi mission of Appeals of New York, 1870. Action for breach of contract. On August 24, 1S60, J. S. & W. Brown, of the city of Xevv York, executed an agreement with the phiintiff as follows: "In consideration of the sum of one dollar, the receipt of which is hereby acknowledged, we have sold this day to Mr. John F. Dustan, of this city, one hundred thousand ijounds of first sort western or eastern hops as we may srlei ih of 1S60; deliverable in the city of New York, ai - ■'P' n, during the months of October or November, loOi^, at seventeen cents per pound, subject to Mr. J, S. Brown's inspection, or other mutually satisfactory. Terms, cash on delivery, f' . Du'! • 's name to be made satisfactory either by indorsement or by t' donobJt of $2,500 by both par- ties. J. S. & W. Brown." On September 7, the plaintiff sold this contract to the defend- ants, by an instrument as follows: "In consideration of the sum of one dollar, the receipt of which is hereby acknowledged, I hr.ve this day sold to McAndrew & Wann the contract of J. S. & W. Brown, dated twenty-fourth August, i860, for one hundred thousand pounds first sort hops, western or eastern, growth of 1S60; upon condition that the said McAndrew & Wann fulfill the conditions of said contract to the said J. S. & W. Brown, and pay to me, in addition, on delivery of the hops, ten and one half cents per pound. John F. Dustan. New York, September 7, i860." On November 28, J. S. & W. Brown notified the plaintiff by letter that they would deliver the hops pursuant to contract on the thirtieth of that month ; and plaintiff immediately, on the same day, notified the defendants of that fact, inclosing to them the letter of J. S. & W. Brown ; and on the same day the said J. S. & W. Brown wrote a similar letter to the defendants. These notices actually came to the hands of the defendants on the morning of the thirtieth. '-■i I lOl'KKTV. DUSTAN V. MCANPKKW. 687 870. , 1S60, J. s. an agreement jf the sum of ivvledged, we this city, one eastern hops in the city of af October or subject to Mr. :tory. Terms, 3e satisfactory by both par- to the defend- eration of the jcknowledged, contract of J. i860, for one rn or eastern, McAndrew & 3 said J. S. & ry of the hops, Dustan. New i the plaintiff ant to contract imediately, on :t, inclosing to le same day the the defendants, defendants on Prior to November 30 John S. Brown had inspected the hops and put his brand upon them, and certified that they were such hops as the contract called for. On November 30 J. S. c'v: \V. IJiown were ready and willing to deliver the hops, and the delendants were requested to take them, and they declined on the sole ground, as they claimed, that they had not had an opportunity to examine them and inspect their quality, and because Messrs. Hrown had refused to let an inspector whom ihov sent inspect the hops. On December 24 the plaintiff took the hops from Messrs. Brown and paid for them, and on the same day wrote the fol- lowing letter to defendants : "New York, December 24, 1860. Messrs. McAndrew & Wann. Gentlemen: The one hundred tliousund pounds hops mentioned in contract of J. S. & W. Brown with me, of twenty-fourth August, 1S60, and in contract of yourselves with me of seventh September, i860, are now at the store No. 4 Bridge street, awaiting the fulfillment by you of the terms of your contract, and I hereby tender to you the said hops, and demand from you the payment of the sum of $27,500, the amount of such contract price. Unless you com- ply with the terms of said contract on or before the twenty- sixth day of December, instant, I will proceed to sell the same on your account and hold you for any deficiency. Your obedient servant, John F. Dustan." Defendants still declined to take the hops, and then on December 26 plaintiff placed them in the hands of a hop broker who sold them for twenty cents per pound. The plaintiff also gave evidence that on November 30 and on December 26 twenty cents per pound was the fair market value of the hops; and the defendants gave evidence that on both o£ these days the market value was some cents higher. There w as also evidence showing that hops had a downward tendency in market all through the month of December. It was shown that the hops in all respects answered the contract. Judgment for plaintiff. Earl, C— The contract required that the hops should be inspected by J. S. Brown, or some other inspector satisfactory to both parties. In case J. S. Brown could not or should not inspect them for any reason, then they were to be inspected by M()I>KS OF Onr.MNINO TITLE TO PKKSONAL PROPERTV. 6SS some other person mutually satisfactory. Neither party had the rif,'ht to demand any other inspector, unless lirown neg- lected or refused to inspect. It is doubtless unusual to insert :i stipulation in contracts that the vendor shall inspect the goods sold. Uut where parties agree to this they must be bound by their contract, and it must be construed the same as if some other person had been chosen inspector. It is claimed on the part of respondent, and was held by the court below, that the inspection provided for was intended simply for the convenience of the vendors, to enable them to perform their contract, and that it merely furnished /;-m«/(r«V evidence that the hops answered the contract, and that the inspection was not conclusive upon the parties. I can not assent to this. The contract was for the sale and purchase of hops of a certain description, and the object of the inspection was to determine for the benefit of both parties whether they answered that description. Until the vendors delivered the hops with the inspection, the vendee was not obliged to pay, and when so delivered, the vendors were entitled to the purchase price. The inspection was thus as much for the convenience and benefit of one party as the other. Its purpose, like similar provisions in a varietv of contracts, was to prevent dispute and litigation at and after performance. But if the inspection was merely for the convenience of the vendors, then they could dis- pense with it, and compel the vendees to take the hops without any inspection whatever. And if it was merely frima facie evidence of the quality of the hops, then it was an idle cere- mony, because, not being binding, the vendee could still dispute the quality of the hops, refuse to take them, and show, if he could, when sued for not taking them, that they did not answer the requirements of the contract ; and thus the plain purpose for which the provision was mserted in the contract would be entirely defeated. The inspection could be assailed for fraud, or bad faith in making it, and perhaps within the case of McMahon v. New York & Erie R. Co., 20 N. Y. 463, because made with- out notice to the vendee. The inspection here was made without notice; but it is not necessary to determine whether this renders it invalid, as no such defense was intimated in the answer or upon the trial. OPERTY. Dr party had lirown ncg- al to insert ii ct the cjoods he bouiul by le as if some s held by the vas intended nble them to 1 prima facie uul that the i. I can not purchase of he inspection whether they delivered the iliged to pay, » the purchase ; convenience c, like similar it dispute and nspection was liey could dis- : hops without 7 prima facie an idle cere- Id still dispute d show, if he lid not answer plain purpose ract would be )r bad faith in lahon V. New e made with- ;re was made rmine whether iitimated in the DISTAN V. MCANUKKW, 689 Hy the purchase of the contract the defendants were substi- tuted, as to it-, performance, in the i)lace of tin- vendee therein ninned, and were bound to do all that he had a<,Meed to do or was liound in law to do. When notified that the hops were iiady for s of llie work), or disahlc liimsclf fit)in pcrlorminj,', or uiiqiialitk-dly refuse to perform his part of llic contract, the phiintiff may. without further performance, elect to sue upon the contract and recover (hima-;es for the breach, or treat the contract as at an end, and sue in bcll that such > E. L. & Eq. e have arrived omcs unneces- Liestions raised lit of error we is respect, the in. Dec. 420; At- tral Lith. Co. v. 6 Am. Dec. 640; rd V. Taggart, 5 btemlcr Term, the plaintiff as lebtor, and was submitted to the court of common pleas upon the following a<;rced statement of facts: "on the thirtieth day of March, iS4S,Sowerby and one Grant, who were paiu.crs as silk manufacturers, in Northampton, pur- chased of Delano, the defendant, sixty-five cords of wood, then piled with a much larger quantity on Del.ano's laud. The wood sold was measured off at the time of the sale, but not otherwise separated from the residue, than by means of a stake put down to designate the extent of sixty-five cords. The con- tract was made with Sowerby, and a bill of the wood was given him by Delano, as follows: "Messrs. Sowerby & Grant. Bo't of C. Delano. 1S4S, March 30th. 65 cords wood, $97.00. Received payment by note at 6 mos. at Northampton Bank. C. Delano." At the time of making the contract, there was no formal taking possession or delivery of the wood, except as above stated, but the purchasers were to remove the same before the first of April, 1S49. On the twenty-ninth of June, 184S, Sowerby applied person- ally for the benefit of the insolvent law, and a warrant was accordingly issued to Ansel Wright, as messenger, on the same day. Possession was taken of the property at the silk works by the messenger on. the thirtieth of June, and a schedule of assets was furnished him by Sowerby on the same day. On the schedule was the following entry, in the handwriting of the messenger: "65 cords of wood on C. Delano's land." No formal possession was taken of the wood by the messenger; nor was any entry made by him on the land where it was piled, which was distant, in fact, two miles or more from the silk works. On the fifteenth of July, Sowerby furnished a sched- ule of creditors, on which was this entry: "Cornelius Delano, Northampton. Note. Wood. No security. $97." On the evening of Saturday, the first of July, Delano, hav- ing heard of the insolvent proceedings, gave the messenger uoHce that the wood had not been paid for, and that he claimed tu hold it, until the price should be paid. Delano also saw Sowerby the same evening, and requested him to give up the hill and take the note. Sowerby took until the next Monday morning for consideration, and being then applied to, gave up ilie bill to Delano, who thereupon canceled the note. The first 69S MODES OF OBTAINING TITLE TO PERSONAL PROrERTY. publication of notice of the insolvency did not take place until Monday afternoon. On the seventeenth of June, 1S48, Sowerby and Grant ad- vertised a dissolution of partnership, and gave public notice that Sowerby was duly authorized to settle all accounts of the late firm. As a part of the terms of dissolution, Sowerby un- dertook to pay all the partnership debts, and Grant conveyed to him all his right and title in and to the partnership property, but this convevance was not known to Delano. At the time of the dissolution, the partners, severally, as well as the partner- ship, were, in fact, deeply insolvent. , . ^ , , The plaintiff was appointed assignee of Sowerby in October, 184S; the first meeting of creditors having been continued on account of certain legal objections; and the assignment was then first made by the commissioner. To the demand made by the assignee on Delano for the wood, Delano answered that he could have it whenever he paid for if and Delano has always been willing to give up the wood upon payment of the price. Subsequent to the first of April, 1849, Delano sold a portion of the wood measured off; but there has always remained in the same lot more than sixty-five cords of similar quality, of which he has offered to give up that amount, upon payment of the price agreed upon. Upon the foregoing statment of facts, the court of common pleas gave judgment for the plaintiff, whereupon the defendant appealed to this court. The case was argued in writing, as follows, on the points considered by the court. Shaw, C. J.— This is an action of trover, to recover the value of 'sixty.five cords of wood, brought by the plaintiff, as the assignee of Arthur Sowerby, an insolvent debtor. It is submitted to the court upon an agreed statement of facts, which being clearly stated, it is not necessary to recapitulate. On these facts, the plaintiff contends that there was a com- plete sale and purchase of the wood, by which the property be- came vested in Sowerby and Grant; that by the dissolution of partnership between them in June, 1848, and the transfer by Grant to Sowerby of all his right, title, and interest in the part- nership property, Sowerby stipulating to pay all the partnership LOrKRTY. ARNOLD V. DELANO. 699 e place until tid Grant ad- 3ublic notice ;ounts of the Sowerby un- t conveyed to lip property, ^t the time of the partner- ly in October, continued on signment was I for the wood , r he paid for ; up the wood irst of April, Lired off; but than sixty-five o give up that rt of common the defendant on the points to recover the he plaintiff, as debtor. It is 3f facts, which :ulate. •e was a com- le property be- dissolution of le transfer by •est in the part- the partnership (Ul>ts, this property became vested in Sowerby; and that l)3'his subsequent insolvency, the proceedings under it, and the as- signment to the plaintiff, the same title to the property be- came vested in him. On the other hand, the defendant insists, that though the wood was sold and measured off, with a license to the purchas- ers to come onto his land and take it away as they wanted it, at any time within one year; and though a credit of six months was given for the purchase money, and a note was given to the plaintiff, payable at the Nordiampton Bank in six months ; yet as the wood remained as it originally lay on his premises, it was in his actual possession; and, ..s the purchasers became insolvent, and legal proceedings in insolvency were instituted against them, before the price of the wood had been paid, he had a right to detain the wood until payment or its equivalent. The cause has been extremely well argued on both sides, aiul many authorities have been cited. But without going over the whole ground, it is proposed to state only what we under- stand to be the rules of law bearing upon the subject, and to apply them to the facts of the case as they appear in the agreed statement. There is manifestly a marked distinction between those acts, which, as between the vendor and vendee upon a contract of sale, go to make a constructive delivery and to vest the prop- erty in the vendee, and that actual delivery by the vendor to tlie vendee, which puts an end to the right of the vendor to hold the goods as security for the price. When goods are sold, and there is no stipulation for credit or time allowed for payment, the vendor has, by the common law, a lien for the price ; in other words, he is not bound actu- ally to part with the possession of the goods, without being paid for them. The term "lien" imports that, by the contract of sale, and a formal, symbolical, or constructive delivery, the property has vested in the vendee ; because no man can have a lien on his own goods. The very definition of the lien is, a right to hold goods, the property of another, in security for some debt, duty, or other obligation. If the holder is the owner, the right to retain is a right incident to the right of property ; if he have had a lien, it is merged in the general property. 700 modi; S OK OBTAINING TITLE TO PERSONAL PUOPERTY. A lien for the price is incitlent to the contract of sale, when there is no stipulation therein to the contrary; because a man is not required to part with his rroods, until he is paid for then., But convcntio legem vincit; and when a credit is civen by agreement, the vendee has a right to the custody and actual possession, on a promise to pay at a future time. He may then take the goods away, and into his own actual possession; and if he does so, the lien of the vendor is gone, it being a right incident to the possession. iJut the law, in holding that a vendor, who has thus given credit for goods, waives his lien for the price, does so on one implied condition, which is, that the vendee shall keep his credit good. If, therefore, before payment, the vendee become bankrupt or insolvent, and the vendor still retains the custody of the goods, or any part of them ; or if the goods are in tiie hands of a carrier, or middle-man, on their way to the vendee, and have not yet got into his actual possession, and the vendor, before they do so, can regain his actual possession, by a stop- page in transitu; then his lien is restored, and he may hole! the goods as security for the price. The principle we take to be well settled, but the difficulty which arises in practice— one which has given rise to so many cases lies in determining what is such an actual chan^ possession from the vendor to the vendee, as shall be dc,m u to put an end to the vendor's lien. Some cases seem to be clear, and to illustrate the rule. If the goods are delivered to the vendee's own servant, agent, wagoner, or shipmaster, that is in law a delivery to the vendee himself. So if goods art- stored in a common warehouse, as the dock warehouses at the London docks, and entered in the books as the property of A. B., and deliverable to him, and a dock warrant issued, and after- ward, upon the proper order of A. B. on the warrant, the whole or a part are transferred to C. D., and entered in like manner in his name, this is an actual change of custody, con- trol, and possession, though the goods are not moved from their position. So, if the seller sustain different characters, as if a person, who is a livery stable keeper, having a horse to sell, makes r. sale to C. D., and then transfers the horse to hii. liv- ery stable, to be kept for C. D. at a stipulated weekly hire, this may be regarded as an actual change of custody and posseiision. I'UOPERTY. AKNOI.I) V. PICI.ANO. 701 ; of sale, when ecause a man is paid for them, :lit is then liy ody inid actual He may then possession ; and t being a right has thus given does so on one shall keep his ; vendee become lins the custody oods are in the y to the vendee, and the vendor, sion, by a stoj)- id he may hold ut the difficulty rise to so many ictual chan,'' shall be dcm "a ases seem to be are delivered to shipmaster, that So if goods arc arehouses at the : property of A. issued, and after- the warrant, the i entered in like of custody, con- tnoved from their aracters, as if a a horse to sell, horse to hii. liv- weekly hire, this y and posscisiou. But by far the most common case which occurs, is where goods are ordered by letter, on credit, to be sent from one country to another, or from one part of the same country to niiother, and are accordingly forwarded by a common carrier. There, as the carrier is not the servant of the vendee, the goods, though they have left the actual possession of the vendor, if they have not reached the actual custody of the vendee, or the ultimate place of destination ordered by him, may be stopped /w //-.rw-s-//// by the vendor ; and if he can thus stop them, he ie;^aiiis his lien. Now to apply these rules to the present case: It appears to us very clear, that there was a good sale and delivery of the wood to Grant and Sowerby. The wood was measured and marked off, so that the very sticks composing the sixty-five cords would be identified. And the reason, why marking, measuring, weighing, etc., is necessary, is, that the particular floods may be identified. If ten barrels of oil are sold, lying ill a tank of thirty barrels, the buyer can identify no part of it ;is his, until it is measured. So, if fifty bales of cotton are sold out of one hundred, no particular bales are identified until sep- :n;ition. Hut, if they are capable of being identified, and by the contract of sale are identified, that is sufficient, and the property passes; as, if in the last case, there are one hundred Iniles of cotton, numbered from one to one hundred, and the contract is for the fifty odd numbers, or the fifty even num- Ihis. or any other specified fifty numbers, the bales sold are identified though not separated. In tht present case the wood was marked off and identified, and the vendees had a license for one year to come onto the vendor's land and to take it away. This was a complete sale and a constructive delivery, so as to vest the property in Grant and Sowerby; and, on their dissolu- tion and transfer, it vested in Sowerby, and by the assign- ment in his assignee. Then, the question' is, whether the de- fendant had, under the circumstances, a lien for the price, and ue think he had. rhe purchasers had a license to go onto the defendant's iaiul, and take the wood; whether this license was revocable or not. it is not necessary to consider, as it was not in fact re- voked. But the vendees did not enter and take the wood; it remained on the vendor's land, and in his possession, in the 703 MODKS OK OBTAINING TITMi TO PEUSONAI- I'KOI'KK IV. same manner as before and at the time of the sale. The ven- dor acted in no new capacity; he was to receive nothinjj for kecpinf^j; he was precisely in the condition of a vendor, who had not parted with the possession and custody of the goods sold. And this was the state of things, when Sowerby went into in- solvency; upon which event, we think, the vendor was rcmittcil to his right to keep possession of the wood as security for the price. Such a vendor in possession is regarded as having :i higher equity to retain for the price, than the assignee of u debtor, who has not paid for the property, has to claim it for the general creditors. Sometimes a question may arise as to what constitutes an in- solvency, and whether a mere stoppage of payment, and fail- ure, in the popular sense, is sufficient. In this case, there is no doubt, because there was an insolvency declared by law, and a sequestration of all the vendee's property, under which this wood is claimed by the plaintiff. If it might be supposed, that the giving of a note in this case was a payment, which would vary the case from that of n sim- ple promise to pay for the wood, we think the answer is, that a promissory note, even if in form negotiable, whilst it remains in the hands of the vendor and not negotiated, but ready to be delivered up on the discharge of the lien, is regarded as the evidence in writing of a promise to pay for the goods pur- chased, and does not vary the rights of the parties. Thurston V. Blanchard, 22 Pick. 18. The fact, that after the proceedings in insolvency com- menced, and became known to the defendant, he applied to Sowerby and got up the bill of sale, can not of itself, we think, avail the defendant. The insolvent could not, in that state, vacate the sale, or reconvey the property; and if the wood was worth more than the lien of the defendant upon it, we think that the assignee, on paying the defendant the price, was en- titled to the wood for the benefit of the general creditors ; and this was a right which the insolvent could not defeat. A fact was stated, on the part of the plaintiff, as of some weight, namely, that after the expiration of one year from the sale, the defendant sold a part of the wood. Whether, at that time, he had an absolute right to sell the wood or not, it seems to us that such sale can have no effect on this claim. The \^ KOI'EIirV, BABCOCK V. nOSNF.IX. 7"3 Ic. The ven- c nothing for iidor, who had e gooil.s sold. went into iii- r was rcmittcil curity for tht- I as having ;i assignee of a claim it for istitutes an in- icnt, and fail- ise, there is no by law, and a ler which this )te in this case that of a sim- nswer is, that lilst it remains it ready to be garded as the iie goods pur- es. Thurston solvency coni- he applied to tsclf, we think, in that state, the wood was 1 it, we think price, was en- creditors ; and feat. ff, as of some year from the hether, at that ir not, it seems s claim. The plaintiff, if he can recover at all, must recover on the strength of his own title. He must prove a conversion. The action of trover admits that the defendant obtained the possession right- fully; then, if he had a lien and a right to hold until the price was paid, his refusal to deliver the wood on demand to the plaintiff (such demand not being accompanied with a tender of the price), was no evidence of conversion; and, until such ten- der made, the plaintiff has no ground of complaint. Judgment for the defendant. Consult— Leonard v. Davis, i Black, 476; Wade v. MolTitt, 21 III. no; Southwestern Freight Co. v. Stanard, 44 Mo. 71, 100 Am. Dec. 255; Diem V. Koblitz, 49 Ohio St. 41; Florence Mfg. Co. v, Urowii, IJ4 U. S. 3S.S; Lupin V. Marie, 6 Wend. 77; Comer v. Cunningham, 77 N. Y. 371; Gregory v. Morris, 96 U. S. 619; Ware River R. Co. v. Hub- bard, 114 Mass. 447; Parks v. Hall, 2 Pick. 213; New Haven, etc., R. Co. V. Campbell, 12S Mass. 104, 35 Am. Rep. 360; Conrad v. Fisher, 37 Mo. CApp.) 352; Robinson v. Morgan, 65 Vt. 37. § 118. Same— Stoppage in transitu— in general. BABCOCK V. BONNELL. [80 N. Y. 244.] Couri of Appeals of Neiv York, 1880. Action by the administratrix of Babcock agiinst Bonnell for an accounting for the proceeds of a policy of insurance taken out on the life of Babcock, and delivered to defendant as collater-il security for two promissory notes of Babcock & Company for $4,678,48. Bonnell afterward received from one Wheelright $925 in full satisfaction of the notes which were delivered to Babcock & Company and destroyed. Church, C. J.— The finding of the trial judge that the pol- icy was taken out and delivered to the defendant as collateral security for the payment of the indebtedness of Babcock & Company to him was warranted by the evidence. No other conclusion could be arrived at, and the evidence is substantially undisputed. 704 Monns oi- oiti.MNiN«. nn.K to personal ruofiniTV. Some vcnrs afterward Mr. Habcock expressc.l a desire not to be rcanle.l as bavin- an interest, and staled tliat tbe entire interest was in tbe defendant; but I do not thini< tbat tb.s cspression, under the eircumstances, would have tlie effect of a release, or create an estoppel. There is no dispute that at the time the policy was taken out, there was an indebtedness in favor of the defendant a^^ainst Habcock ."^ Company, evidenced by two notes, amounting to $4,678.48. Tbe policy was issued in February, 1S70, and it is claimed and found that ni April, ,S7<,, these notes were compromised and settled, and that the defendant received from one Wheeb i-ht, on behalf of Babcock & Company, $9-S in money, in full satisfaction and discharge of said indebtedness, and delivered and surrendered said notes to him, and that thev were afterward delivered up to Babcock & Company, who destroyed and canceled them. Wheelright testii'ied tiiat he purchased the notes of the defendant and paid his own money, and delivered them to Babcock ik Com- nanv upon being repaid that amount and his expenses. In either view we think the debt was discharged. It was an exe- cuted accord. Nothing remained executory, and it operated ns a full satisfaction. A mere promise to accept less than the full amount of a debt, although the sum promised has been paid has been held not suilkient; but when the security has been surrendered, or some act done of a like nature, there is no reason, in law or morals, why the party should not be bound. Kromcr y. Ileim, 75 N- Y. 574, 3> Am. Rep. 49|- It may be that tbe defendant intended to hold the policy of insurance to indemnify him for the deficiency, but there was no ..neement to that effect, and the defendant's letters indicate duit he had regarded the debt fully released and canceled. The defendant claims also to hold the policy as security for the balance of an additional indebtedness of $1,326.44 and inter- est, after applying the proceeds of a cargo of ^^'^^l' ^^^ f"^^";f i„ iespect to which is here Miserted: ^^FouHA. On the fifteenth day of November, 1S69, the defendant sold a cargo of coal to said Charles A. Babcock & Company, and took a note in pay- ment therefor of $1,226.44, due March 15, 1870; the said last mentioned cargo of coal was shipped to said Charles A Babcock & Company by the schooner Hefzibafi, on or about the twenty-firstday of February, 1S70, the defendant through IT.KTY. nAncocK V. bonnell. desire not it the entire k that this ic effect of piitc that at ibtedness in , evidenced r was issued It in April, and that the of Bahcock id discharge d said notes to IJabcock Wheclright cndant, and ock k Com- cpenscs. In was an exe- 5t operated less than the ;d has been security has e, there is no 3t be bound. [. ;he policy of there was no Iters indicate nd canceled, curity for the \\ and inter- 1, the finding 1 the fifteenth rgo of coal to \ note in pay- ; the said last 1 Charles A. 't, on or about idant through liis agent, Edward (juihijjer. stopped the saiil hist mentioned largo of coal in transitu, took possession tiiercof, and dis- .illirmed the contract of sale therefor, and on the fourtli day of May, 1 870, sold the said last mentioned cargo of coal to (jiie I-^. S. Farrar. " If this finding can be sustained as a finding of fact, it disposes of any claim for the debt. If the disalfirmance of the contract of sale of the coal depends as matter of law upon ilie stoppage of the coal in transitu, then a more difiKiilt and doubtful question is presented. Every intendment is in tavor of the findings of facts, and findings may be implied, if war- ranted by the evidence, to sustain a judgment. Tiie evidence as to the stoppage of the coal, as to the possession of the (iifendant, and the sale tliereof by liim does not present the facts as clearly as would be desirable upon this question. If the defendant took possession of the coal in the exercise of the right of stopjiagc in transitu, and sold the same without notice to Habcock tS: Company, and without their consent, and espe- cially before the debt was due, an inference of an intention to disatfirm the contract of sale might be drawn, because upon liie theory that this right is to enforce a lien, as claimed by the defendant, he must hold the property until the exniration of the credit, and be able to deliver it upon payment of Mie price, and the vendee has the right to pay the price and take the iMop^ty. According to that theory the credit is not abrogated, nor the sale, but the vendor is permitted to retake the posses- sion of the property, and hold it as security until the price is paid. If not paid at the time stipulated, the vendor, in analogy to other cases of lien, may sell the property upon giving notice. The general rule upon the theory of a lien must be that the vendor, having exercised the right of stoppage in transitu, is restored to his position before he parted with the possession of tiie property. The property is vested in the vendee, and the vendor holds possession as security for the payment of the purchase price. If, therefore, the defendant sold the coal with- out notice or consent, or if with consent of the vendees with the understanding that the sale was to be deemed rescinded, the find- ing would be justified, and the defendant would have no claim upon this note. The coal was sold to one Farrar, and a bill of sale thereof made by the defendant, and he received the purchase money. 45 mm 7o6 MODICS OI. ..IMAIMNO ITil-K TO I'Kl.sONAI, I'UOI-KUIV The n.al was S..U1 and the hill of sale an.l payment were not made until Al).ll, alter the note became dne. and there is .onie contlict ir. the evidence whether it was made with the knowl- cdL'e or consent of Bahcock k Company, or not. As to the legal (luestion, althoufrh the ri-ht of stoppa-e m transitu has heen rec-ni/.ed in iOn-hmd for nearly two hundred years, there is jrreat confusion in the hooks as to the or.-n, of the ri-ht, and the principles upon which it is founded. As late as 184. Lord Ahin^-er said, that, -althou^'h the question ot stoppage in transitu had heen as frequently rai-^e.l as any other mercantile ciuestion within the last hundred years, it must be owned that the principle on which it depends has never been either settled or stated in a satisfactory manner. »'In courts of equity it has been a received opinion that .t was founded on some principle of common law. In courts c.f law it is just as much the practice to call it a principle of equity which the common law has adopted." Mr Parsons, in his work on Admiralty, says there are three ways, in either of which it miffht be supposed that the law ot stoppn-e entered into the law of England. One, that .t .s l,ased upon the civil law by which, in case of a sale, the prop- erty does not pass to the buyer until he has possession of the goods It would follow that the seller would continue the owner until they reach the buyer, and that by the insolvency of the latter the goods would remain the property of the former. IJv the common law a sale does of itself pass the property to the buyer without delivery. Another way is by implying a right ot re<^cinding the contract of sale in case of insolvency, and that the act of stoppage was an exercise of that right, and a third way is by implying constructive possession in the seller for the purpose of a lien, to be enforced by the act of stoppage, or, m other words, that this right is an enlargement of the common law right of lien. Pars. Adm. 479. The rule seems not to have been settled in 1S43. Parke, U., said- "What the effect of stoppage m transitu is, whether entirely to rescind the contract, or only to replace the vendor in the 'same position as if he had not parted with the possession, and entitle him to hold the goods until the price be paid down, is a point not yet fully decided, and there are difficulties attend- ing each construction." lOl'EUTV. Lint were not there is some th the kiiowl- ■ stopiKi^'e in >■ two hiiiuhtd I the origin of ulcd. As hite c ciufstion of il as any other rs, it must be xs never been Dpinion that it In ce)urts of ciple of equity there are three Kit the hiw of )ne, tluit it is sale, the prop- session of the continue the e insolvency of of the former, property to the lying a right of vency, and that ;ht, and a third 10 seller for the itoppagc, or, In of the common 42. Parke, B., iitu is, whether )lace the vendor 1 the possession. ; be paid down, fficulties attend- IIAHCOCK V, nONNEr.L. P7 Mr. Mcll, in his Commentaries on the Law of Scotland, favors the doctrine of rescission. He says: "Although there arc many dilliculties cither way, it appears, on the whole, most consistent with tlic great lines of this doctrine of stoppage in transitu, that the seller's security over the goods sold, though perhaps in a large sense of the nature of a lien, is given by equity originally on the condition that the seller shall take back tiie goods, as if the contract were ah initio recalled." There are some other authorities favoiing the same view, and there are others that favor the theory of a lien. Fcise v. VVray, 3 East, 93; Ex parte Gwynne, 13 \'ts. Jr. 379; Lick- barrow V. Mason, 6 East, 21, note. Mr. I'arsons says that the earlier English rases sustain the doctrine of a lien, and intimates that later authorities changed the ground to that of rescission, but that the latest returned to the original doctrine. Pars. Adm. 4S1, Whatever uncer- tainty there may be as to the rule in England, the decisions in this country arc quite preponderating in favor of the theory of a lien. Rowley v. IJigelow, \i IMck. 307, 23 Am, Dec. 607; Staunton v. Eager, 16 Pick. 467-475; Arnold v. Delano, 4 Cush. 33, 39, 50 Am. Dec. 754; Newhall v. Vargas, 13 Me. 93, 29 Am. Dec. 4S9; S. C, 15 Me. 314, 33 Am. Dec. 617, and cases cited; Rogers v. Thomas, 20 Conn. 53; Jordan v. James, 5 Ohio, SS-98; Harris v. Pratt, 17 N. Y. 263. The elementary writers favor the same view, 3 Kent, Com. 541; Pars. Adm. 4S3; Pars. Cont. 59S. The question has never been, that I am aware, definitely decided in this state. As an original question the doctrine of rescission commends itself to my judgment as being more simple, and, in most cases, more just to both parties than the notion that the act of stoppage is tlie exercise of a right of lien ; but in deference to the prevail- ing current of authority, I should hesitate in attempting to oppose it by any opinion of my own, and for that reason I do not deem it necessary to state the grounds which influence my ill luent. , is found as a fact that the policy was delivered to the iffendant as llateral security for the payment of the first two notes referred to only, "and that the defendants never acquired or 1 ad any interest in said policy or in the moneys to accrue or bee >ine payable thereon, except as a creditor of the said firm, 7„S MODES OF OnTA.NING TITLK TO PERSONAL PROPERTY. and to the extent of his claim upon the nforesnul t.-o notes against the said firm." The evidence jusi.fied th.s find-nj,. ^M.e letter of the defendant of March i, .S76 shows that he did not then snppose that he had any lej^al indebtedness aga.nst Babcock & Company. At the time the pol,cy was ,ssued the c.rcro of coal for which the last note was given was m posses- sio,:of the defendant as he claimed, and had not been d.sposed of so that the balance, even if Babcock & Company vvere liable for it, could not then be known, and in March aft^cr in a t^ t. the defendant, h.troducing Mr. Wheelright, Babcock & Company sav : "We will avail ourselves of the opportun.ty o have him ariange for the settlement of your dann agamst 1, leaving in abeyance the cargo of Hep.i^ak, and the note eivcn in settlement of the same." ^ « f ,u .f fhe> The testimony of the insurance agent is to the effect tha the policv was delivered to secure a fixed indebtedness, vvh.ch could only refer to the first two notes. We are of opn.:on, therefore, that the defendant has no lien upon th.s money to secure th. balance of the note given for that cargo of coal, even if Babcock & Company arc liable for it. It follows that the judgment must be affirmed. All concur, except Earl, J., dissenting. Co.svLT-Rowlev v. Higelow, 12 Pick. 313; Atkins v. C°lbjs 20 N. 13 Me! 93, 29 Am. Dec. 489; M'^Klroy v. Seery. 61 Md. 389, 48 Am. Rep. no. §119. Same— Insolvency of buyer. BENEDICT V. SCHAETTLE. [12 Ohio St. 515.] Supreme Court of Ohio, .061. G„oi ,ov. J.-According to the decision in House v. Elliott, 6 Ohio St. Rep. 497, which applies in this case, we can not inquire as to the weight of evidence on which any finding of fact was made in the court below. The finding must be against law Assuming every fact which the evidence may tend to r I .,.-,^=aw. I, PROPERTY. oicsaid two notes Tied this finding. r6, shows that he Icbtedness ngainst icy was issued the en was in posses- not been disposed t Company were March after, in a leehight, Babcock if the opportunity ■our chiim against ibah, and the note ) the effect that the lebtedness, which I'e are of opinion, pon -his money to hat carfjo of coal, t. tned. .tkins V. Colby, 20 N. 3; Newha'.l v. Vargas, , 6i Md. 389- 48 Am. BENEDICT V. SCIIAETTI.E. 709 ILE. ?(5/. 1 in House v. Elliott, is case, we can not hich any finding of iding must be against vidence may tend to prove, in support of the finding and judgment of the court below, do those facts fail to establish the right of the plaintiff in the action to recover? We need not, therefore, say wliether there was sutlicient evidence to show that Johnson, to whom the goods were sold, was insolvent. There was, we think, evidence tending to show the insolvency of the vendee at the time of the sale of the goods, and that such insolvency was not known to the vendor. The question then arises whether the vendor, on afterward hearing of the insolvency, may exercise the right of stoppage in traiisit/i, or, whether, as claimed by counsel for the plaintiff in error, the insolvency, to authorize a stoppage in trr^nsita must be evidenced by some positive overt act, the existence of which is not inferable from any testimony in the bill of exceptions, and that such overt act must occur after the sale, and before the delivery of che goods? It is the rule of the mercantile law, that where goods have been consigned, and are on transit to the vendee, the consignor can not vary the consignment, except in the case of insolvency. It has been said that "the mischief and inconvenience that would ensue on a contrary supposition are extreme The goods might DC put on board, and might lie at the risk of the consignee for two or three months ; and if the consignor could come and resume them at pleasure, it would place die consignee in a situation of great disadvantage, that he should be exposed to the risk during such a length of time, for an object which miglit be eventually defeated, at any moment, by the capricious or interested change of intention in the breast of the consignor. It would be to expose the -onsignee altogether to the mercy of the seller." The Constantia, 6 C. Rob. 321-327. In that case the vendor had stopped and diverted the delivery of goods, and it was said, if the vendee "had been an insolvent person, it would have amounted to a complete and effective revendica- tion of the goods. But if the person .to whom thrv are con- signed is not insolvent; if from misinform.ition or < xcess of caution, the venuor has exercised this privilege pre naturely, he has assumed a right that did r- I belong to him, and the consignee will be entitled to the delivery of the goods, with an indemnification for the expenses that have been incurred. * * • It is not an unlimited power that is vested in the consignor, to vary the consignment at his pleasure in all cases 7.0 MODES or OnTAlN.NG TITLE TO PERSONAL PUOrEUTV. Whatever. It is a privilege allowed to the seller, for the par- ular purpose of protecting him from the msolvency of the o sK^nce. Certainly it is not necessary that the person should be ctually insolvent at the time. If the insolvency happen I forethe'arrival, it would be sufficient to )"-' Y - -t ^a been done, and to entitle the shipper to the benefit o h.s own provisional caution. But if the person ,s not msolven^ the Lund is not laid on which alone such apr.v.lege is founded 6C Rob. ^26. In the case of Wilmshurst v. Bowker, 2 M. & G. 792, L2, it was said by Tindal, C. J.: "The o,.hnary r^.ht of c;untermanding the actual delivery of goods sh.pped to'', consignee, is limited to the cases in wh.ch the bankruptcy r/nsolve;cy ;f the consignee has taken place Jhe law as o this point is very clearly laid down by Lord Stowell. m the case of The Constantia." , This statement of the doctrine of stoppage tn transttu, v^h.ch is supported by such high authorities, does not sustam the "position that a vendee, insolvent at the time of the sale of glods, and still remaining insolvent, can object to then- stoppage Z transitu. He could only complain when his msolvency was lowrto the vendor at the time of sale, and the contract was Zl in view of such, his condition. The object m allowmg the privilege to the vendor being his protection agamst the n oWency of the vendee, such privilege, unless waived by the vendor, ought properly to extend to cases of insolvency whether Existing at the time of sale or occurring at any time before the ac 1 delivery of the goods. A vendee who disputes the ngh o toppage in transitu must be prepared to aver, as in the c se o Wilmshurst v. Bowker, 2 M. & G. 79^, wh'ch was an iction by a vendee against a vendor for improperly stopping he d Hvery of goods, that he was neither bankrupt nor insol- v^. Independently of any circumstances to the contrary the vendee might have the benefit of a presumption of ability to comply with his contract, and the burden of showing insolvency Th be cast on the vendor. It may be that this would be Efficiently shown by the proof of an overt act of msolvency 1!. stoppage of payment, though, in fact, an actual nsolvency, in the sense of not having means adequate to the "ment of debts, might not exist. If the vendee, before e steppage in transitu, had, by his conduct m business, affoided lOrERTV. for the par- Ivency of the Derson should ency happen ify whot has it of his own insolvent, the i is founded." Sovvkcr, 2 M. 'The ordinary ;oods shipped lie bankruptcy The law as to Itowell, in the <-ansitu, which Dt sustain the of the sale of 1 their stoppage nsolvency was 2 contract was ;ct in allowing on against the waived by the vency, whether time before the sputes the right aver, as in the 793, which was operly stopping ;rupt nor insol- he contrary, the an of ability to wing insolvency this would be : of insolvency, fact, an actual adequate to the idee, before the Lisiness, afforded nUXEDICT V. SCHAETTLE. 711 flic ordinary apparent evidences of insolvency, he ought not to complain of the precautionary measure taken by the vendor, though it should turn out that he was ultimately able to pay. But, though no such evidences of insolvency should precede the stoppage in transitu, still, if the fact of insclvency existed, the vendee ought not to complain. This, at le.e inferred from the language of the authority which has been cited, and appears entirely reasonable and proper. Fair deal- ing will be better insured by leaving to the vendor his privilege of"stoppage in transitu, in all cases of insolvency, whether evidenced by the ordmary accompanying acts, or shown actually to exist. The rights of a fair vendee will be sufficiently pro- tected by giving him an indemnity when the right of stoppage in transitu is exercised upon rumor or suspicion without any foundation in fact, and by depriving the vendor, in all cases, of any chance of speculating upon the goods, by requiring them to be delivered or accounted for to the vendee, or his assignee, on the payment or tender of the agreed price. These views are sustained by the origin and nature of the doctrine of stoppage in transitu. It appears to have been derived from, or to be analogous to, the revendication of the civil law. This has been thus defined: "Revendication is the right of an unpaid vendor, upon the insolvency of the vendee, to reclaim, in specie, such part of the goods as remains in the hands of the vendee entire, and without having changed its quality." (In re Westzynthius, 2 Nev. & Man. 6-0 note.) In Bell's Commentaries on the Laws of Scotland, cited in the same case, it is said: "The privilege to stop -oods in transitu is a qualified extension in equity of that rule of mutual contract, by which either party may withhold per- formance, on the other becoming unable to perform his part." It is stated, as a rule introduced into the common law, in mod- ern times, founded on principles of equ-ity, and borrowed from the foreign or continental law, thut in case of the endee's bankruptcy or insolvency, the vendor might stop and take back the goods in transitu, or before they come into the hands of the vendee. Bell's Comm., bk. 2, pt. 2, c. i, art. 3, cited, 2 Nev. & Man. 651, 652, note; Mackreth v. Symmons, 15 Ves. ^i^. It is "nothing more than an extension of the right of lien, which, by the common law, the vendor has upon the \ 712 MODES OK OBTAINING TITI.E TO PERSONAL PROrEKTV. ooods for tlic price, originally allowed in equity and subsc- riuentlv adopted as a rule of law." Rowley v. Bigelow i. Pick '^07, MV, Atkins V. Colby, 20 N. II. 154? <-out v. Hill " 4 Grav, 36, . "A kind of equitable lien adopted by the law for the purposes of substantial justice." Hodgson v Loy, •7 T R 44-.. In the case of McEwan v. Smith, 2 Ho. L. Cas! .09, 328, it was said by Lord Campbell, that "the docti ine of stoppage in transitu is a most just and equitable one, and I would by no means strive to limit its operation." If the "true principle of the right of stoppage in transitu \.^ found in that certainly just rule of mutual contract, by which cither party may withhold performance, on the other becoming unable to perform on his part; if the foundation of the rule be a just lien on the goods for the price, until delivered, an equi- table lien adopted for the purposes of substantial justice, then, it is the ability to perform the contract-to pay the price- which is the material consideration. If there be a want of ability, it can make no difference in justice or good sense, 'whether it was produced by causes, or shown by acts at a period before or after the contract of sale. Substantially, to the vendor who is about to complete delivery, and abandon or lose his proprietary lien, the question is, can the vendee per- form the contract on his part; has he, from insolvency, become unable to pay the price? If such be his condition, and the vendor has not precluded himself by some act of waiver, the eeneral principles on the subject and justice require that he should be allowed to exercise the right of stoppage in transitu. ^ To sustain the contrary view and limit the right of stoppage in transitu, the case of Rogers v. Thomas, 20 Conn 53, .s relied on, in which it was decided, that to authorize the exer- cise of the right of stoppage in transitu there must be some overt act of insolvency, and that it must intervene between the sale and the exercise of the right. The decision in the case of Rocers v. Thomas was not made on the authority of previous c.ses but, in the absence of such cases, upon the ground that the eeneral definitions or statements of the doctrine of stoppage ,„ transitu required such a limit to the exercise of the right; and particular reference is made to the general statement of the doctrine in Smith's Mercantile Law, 547 [Am. Ed. 677]. The very first authority cited by Mr. Smith to sustain his stuiement ROPERTY. BENEDICT V. SCIIAETTLE. 7'3 ty, and subsc- , Bigclow, 12 [54; Grout V. doptcd by the dgson V. Loy, lith, 3 IIo. L. t "thcdoctiiiic Ac one, and I tu iranstiu be ract, by which ther becoming of the rule be rered, an equi- il justice, then, ly the price — be a want of )r good sense, by acts, at a ibstantially, to nd abandon or lie vendee per- Ivency, become dition, and the of waiver, the require that he age in transitu. ght of stoppage JO Conn. 53, is horize the exer- ; must be some ene between the n in the case of )rlty of previous the ground that rine of stoppage se of the right; statement of the Ed. 677]. The ^in his stuiement of the doctrine is the case of Wilmshurst v. Bowkcr, and he .juotcs the remarks of Tindal, C. J., as to the clearness with \vhich the law on the point had been laid down by Lord StovvcU in the case of The Constantia. Interpreting the statement of the doctrine, by Mr. Smith, in the light of the authorities he cites, and it is manifest that he never intended any such limit to the exercise of the right of stoppage in transitu. Nor do we think the terms in which the doctrine of stoppage in transitu is stated in many of the authorities, would justify the limit sup- posed to exist. It was said by Lord Kenyon, in Ellis v. Hunt, 3 T. R. 467, that "t.ie doctrine of stopping goods in transitu is bottomed on the case of Snee v. Prescot, i Atk. 345, where Lord Hardwicke established a very wise rule, that the vendor might resume the possession of goods, consigned to the vendee, before delivery, in case of the bankruptcy of the vendee." The doctrine is thus stated by Lord Hardwicke. After referring to the rule that an action against a carrier for loss of goods should be brought in the name of the consignee he pro- ceeds: "But suppose such goods are actually delivered to a carrier, to be delivered to A., and while the carrier is upon the road, and before actual delivery to A. by the carrier, the con- signor hears A., his consignee, is likely to become bankrupt, or is\ctually one, and countermands the delivery, and gets them back in his own possession again, I am of opinion that no action of trover would lie for the assignees of A., because the goods, while they were in transitu, might be so counter- manded." Snee v. Prescot, i Atk. 348. In a case before cited it is said by Lord Campbell: "What is stoppage i« transitu} It is this, that where a vendor of -oods has to send them to a vendee, and has, for that purpose, parted from them to a carrier, he may, upon hearing of the insolvency of the vendee, while they remain in the hands of the carrier, and before delivery to the purchaser, stop their deliv- ery." McEwan v. Smith, 2 Ho. L. Case, 33S. In the case of Donath v. Broomhead, 7 Barr, 301, 303, it is said: "The right of a vendor, on the discovery of the bank- ruptcy or insolvency of the party to whom he has s^old goods on credit to retake them before actual or complete delivery, is the well settled doctrine of both courts of law and equity." 714 MODKS Ol- OliTAlNING TITLE TO PERSONAL PKOPEKTY. In tl.e case of Hays v. Mouillc, 14 Pa- St. 4S, the judge, :n his charcrc to the jury (and his views were expressly adopted by the court of error), after stating that the insolvency ot the vendee was the ground-work of the plaintiff's claim, thus put the question— Was the vendee "insolvent whe- these goods were replevied by the plaintiffs? It is not necessary, to prove insolvency, that he should have been declared a bankrupt or insolvent by a judicial tribunal, nor that he should have made an assignment of his property. If the fact exist, no matter how proved, if sutficiently and satisfactorily proved, the law requires no more." In that case the evidence tended to show that the vendee was insolvent when the goods were bought, and the judge further said: -You have the testimony of Baker that Rhodes was indebted some $60,000, and that his assets were but $26,000, and that his creditors were watching for these goods on the line of transportation, and actually attached them before they reached Ohio, for debts which he was not able to pay." ^ „ ^^ , In the case of Stevens v. Wheeler, 27 Barb. 65S, 663, there is this statement of the rules on the subject of stoppage m transitu: "that the vendor has a right to stop goods sold by him when he discovers the vendee to be insolvent, at any time while the goods are in transitu. That the transitus continues until the goods reach the place of destination, unless sooner terminated by the act of the vendee. That the delivery to the vendee of the goods, or a part of them, or a delivery to his agent or to a bona jidc purchaser from him,^ ter.ninates the right of the vendor of the goods to stop them." Not only do the general statements of the doctrine fall short of sustaining the decision in Rogers v. Thomas, but, in several cases, where the question was involved, it was differ- ently decided. Such, we think, was the case of Hays v. Mouille, 14 Pa. St. 48, before noticed. There, it is evident, the insolvency existed at the time of the sale of the goods, and it was proved, not by any overt act, but by a compari- son of the amount of liabilities with the amount of assets. The decision in the case of Buckley v. Furniss, 15 Wend. 137 appears to be directly opposed to that in Rogers v. Thomas. In Buckley v. Furniss, the point was made that the vendor, at the time of the sale, knew the circumstances lOI'EKTY. BENEDICT V. SCIIAETTI.E. •'5 the judge, in jssly adopted Ivency ot the aim, th'is put these goods iiiry, to prove a bankrupt or Id have made 3t, no matter )vcd, the h\\\ nded to show e bought, and my ot Baker that his assets watching for lally attached ;h he was not 58, 663, there >f stoppage in goods sold by It, at any time itus continues unless sooner Llelivery to the lelivery to his er.ninates the doctrine fall omas, but, in I, it was differ- ; of Hays v. :, it is evident, ! of the goods, by a compari- of assets, niss, 15 Wend. in Rogers v. was made that B circumstances of the vendee, who was then insolvent. It was said by Bron- bon, J.: "The sale was no doubt absolui., whether the plaintiff knew that Titus was in="1vent or <\ut; and so are most sales, where the vendor afterward exercises the riglit of stop- pasfc in transitu. The right of the vendor to resume possession ol goods sold on credit, in case of the insolvency of the con- siunec, before they come to his hands, does not depend upon aiiv co.idition, or other peculiarity in the contract of sale, but proceeds on the ground of an equitable lien. Still, it may be, and probably is true, that if the plaintiff sold the iron, with a lull knowledge of the situation of the vendee, he could not alterward exercise the right of stoppage in transitu ; but the argument is not borne out by the facts." The judge then pro- ceeds to show by a reference to the facts, that, although the vendee was insolvent at the time of the sale, it was not known lo the vendor, who, therefore, had the right to retake the goods. Tills case was cited by counsel, in Rogers v. Thomas, but was not noticed in the opinion of the court. There are other cases in which the decision did not turn on the question of insolvency, the contest in this class of cases havino- generally been as to the termination of the transit; but where it appears either directly or by strong inference, that the insolvency existed at the time of sale. Such a case is Biggs v. Harry,"- 2 Curtis, 259, in which it clearly appears that the insol- vency existed at the time of sale ; but the case was given to the jury on the question, simply, whether the transit had ended, without any reference to the time of insolvency. In the cases of Stubbs v. Lund, 7 Mass. 453, and Ilsley v. Stul)bs, 9 Mass. 65, what was regarded by the court as the sale of the goods, their shipment on order, was after the insolvency nt the vendee, and yet the exercise of the right of stoppage in tiansitii was sustained. The point might have been made, and if sustained would have changed the decision in the case of Litt v. Cowley, i Holt. 338, 3 Eng. Com. L. 138, as is shown by Waite, J., in his dissenting opinion in the case of Rogers v. Thomas. It may not be conclusive against the correctness of a legal propo- siiion, that it was not presented, when from the facts involved it might have been. But when this has occurred in a number ol cases, where it is to be supposed that both counsel and court y 7l6 MOUKS Ol- OUTAINING TrrMC TO I'F.IISONAI. I'K. il' IK TV. arc well informed as to the rules of law, it is a reasonable inference that the point was not made because it was deemeil unten:d)le. We have not been able to find, and our attention has not been called by coun^-el to any decision which sustains the restriction on the right of stoppage in transitu laid down ni Rogers \ . Thomas; but it has been adopted as a rule of law in several elementary works. It appears to be approved in i Parsons on Contracts. 47O, 47S, but that approbation is omitted in tlic work of the same author on Mercantile Law, and withdrawn. and a grave doubt substituted, in his more recent work on Maritime Law, i Vol. 369. We are satislied that the restriction can not be maintainitl either on principle or authority. In accordance with the views which have been expressed, the judgment of the superior court of Cincinnati will bo affirmed. Judgment affirmed. Consult— Farrell v. R. Co., 102 X. C. 390, 11 Am. St. Rep. 60; Loeb V. Peters, 63 Al.i. 243. .IS Am. Rep. 17; Blum v. Marks, 21 La. Ann. 26S, 99 Am. Dec. 7:5; O'Brien v. Norris, 16 Md. 122, 77 Am. Dec. 284; Kingman v. Denison, S\ Mich. 608; Fenkliausen v. Fellows, aoNev. 3U. § 120. Same— Disregard of notice to carrier. JONES V. EARL. [37 Cal. 630.] Stiprcine Court of California, July, l86g. Appeal from the district court, sixth judicial district, Sacra- mento county. The action was against a forwarder for the conversion of goods. The following is a copy of the letter which is referred to in the opinion of the court: "San Francisco, November 18, 1S67. Messrs. D. W. Earl & Co. : Gents — On the eleventh instant we shipped to your care the following goods, viz. : Two barrels whisky. Two casks ale. Two casks porter. Four baskets champagne- I'Kdi'inirv. is a reasonable : it was deumt'd nil has not hccii s tlio rc'strictio:i 11 ill Rofjjcis V. : law ill scvcr;il in I Parsons on omitted in tlic luid withdrawn. ecent work on t be maintained been expressed, cinnati will be gment atlirmed. St. Rep. 60; Loeb 5, 21 La. Ann. 26S, 77 Am. Dec. 284 ; Hows, 2oNev. 31^. ir. JONKS V. KAUL. 717 , 1869. district, Sacra- e conversion ot vhich is referred srs. D. W. Earl shipped to your whisky. Two ets champagne- r.nir cases Ilostetter's bitters. Marlra; Litt v. Cowley, 7 Taunton, 169; Whitehead v. Anderson, 9 M. & W. 51S; Bell V. Moss, 5 Wharton, 1S9. And notice to the a-cnt of the carrier, who in the regular course of his agency is in the actual custody of the goods at the time the notice is -nvcn, is notice to the carrier. Bierce v. Red Bluff Hotel Co., y Cal. 160. The case made by the record shows that the goods in ques- tlun were consigned to the care of the defendant at Cisco, to be y 7iS MODKS OK ODTAINING TITLK TO IMCUSONfAL PHOlMCIirV. forwai-acl bv him in tlie usual course of business to the vcnde. .,t Virginia Citv. Tluit the defcntlant was engaged in the for - wurdin- business at Sacramento, and iiad an ap;ent at Cisc- whose business it was to receive all Roods shipped to the car. of defendant, and deliver them to the order of the vendee upon pavment of char-es and commissions. That, while the goods were at Cisco, and in the custody of the defendant's agent, who had full charge of the forwarding business at that place, a letter from the plaintiff, addressed to the defendant at Cisco, containing a l)ill of the goods, and informing the defendant that the vendtTe had been attached, and that he wanted to save the goods, and directing the defendant not to deliver the goods to any one except his (the plaintiffs) agent at Virginia, who would be looking out for them, was received by the defendant's agent at Cisco. That the defendant, by his agent, acknowl- edged the receipt of the letter, and stated that the goods were ''in store and he would hold them subject to the order ot Byers ' (plaintiff's agent). That afterward the vendee of the goods came to the agent of defendant and, tendering charges and commissions, demanded the goods, and that the demand was complied with. That the vendee was insolvent at the date of the notice to defendant's agent that the plaintiff desired to stop the goods in his hands. In view of these facts, and the law as above declared, the defendant is clcarlv liable for a conversion of the goods. Judgment and order affirmed. CoNSVLT-Xevvhall v. Vargas, 13 Mc 93, 29 Am. Dec. 489; Rucker v. Donovan, 13 Kan. .5^ ; Allen v. R. Co., 79 Me. 3^7; R«>"°'^'^ '■ ^J" ^C^J' 4, X 11. sSo; Mottram v. Meyer, 5 Denio, 634; Bell v. Moss, 5 Whar.. 206; TheE. 11. Pray, 27 Fed. Rep. 474! Potts v. R. Co., 131 Mass. 4551 Far'rell v. R. Co., 102 N. C. 390. § 121. Same— Delivery, when complete. TUFTS V. SYLVESTER. [79 Me. 213.] Supreme Judicial Court of Maine, 1887. Trover by the vendor of merchandise against the messenger of the insolvent vendee. The opinion states the facts. HOIMCIIIY. TUFTS V. SYLVESTER. 719 to the vcndei ed ill Uic for- piciit at Cisci' ed to the call t vendee upon lile tlie goods idant's agent, at that place, dant at Cisco, defendant that ed to save the ■ the goods to Virginia, who he defendant's ;ent, acknowl- hc goods were rder of Byers" 2 of the goods r charges and e demand was : at the date of desired to stop e declared, the e goods, order afHrmed. c. 489; Rucker v. ytioUis V. R. Co.. f. Moss, 5 Whart. 0., 131 Mass. 455; 1887. it the messenger le facts. Peters, C. J. — The plaintiff sold a bill of goods to be ^hipped at Boston to the buyer at Farmington, in this state. I'he buyer, becoming insolvent after the |)urchase, counter- manded the order, but not in season to stop the goods. Belore tlie goods came, he h.id gone into insolvency, aiul a messenger iiad taken possession of his property. An express company liringing the goods tendered them to the buyer, who refused to receive them, but the messenger accepted the goods from the carrier, paying his charges thereon. After this, but before an assignee was appointed, the seller made a demand upon Iioth the carrier and the messenger, attempting to reclaim his goods. The question, upon these facts, is whether the goods were seasonably stopped in transitu to preserve the plaintiff's lien thereon. We think they were. The right of stoppage in transitu is favored by the law. It is clear that the goods did not go into the buyer's possession. lie refused to receive them. lie had a moral and legal right to do so. Such an act is commended by jurists and judges. He in this way makes reparation to a confiding vendor. "He may refuse to take ))ossession," says Mr. Benjamin, "and thus leave unimpaired the right of stoppage in transitu, unless the vendor be antici- pated in getting possession by the assignees of the buyer." Benj. Sales, section S5S. In Grout v. Hill, 4 Gray, 361, Shaw, C. J.-, says: "Where a purchaser of goods on credit finds that he shall not be able to pay for them, and gives notice thereof to the vendor, and leaves the goods in possession of any per- bon, when they arrive, for the use of the vendor, and the vendor on such notice expressly or tacitly assents to it, it is a good stoppage in transitu, although the bankruptcy of the vendee intervene." See same case at page 369; i Pars. Cont. *596, and cases. The decision of the case, then, turns upon the question whether the messenger could accept the* goods, and terminate the lien of the vendor. We do not find any authority for it. A bankruptcy messenger acts in a passive capacity ; is intrusted with no discretionary powers; acts under mandate of court, or does certain things particularly prescribed by the law which creates the oflfice; is mostly a keeper or defender of property, — a custodian until an assignee comes; and he can neither add to i!or take from the bankrupt's estate. He is to take possession \ 7^0 MOUF.S OF OnTAININ'O Tl .I.K lO I'F.USONAL niOPKIlTY. Of the "estate" of the hi.olvent. These floods ha.l not become fl part of the estate, lie was not at liberty to alhrm or d.s- .tlirni anv act of the insolvent. The huv iniposes on h.m no such responsibility. Chancellor Kent says that the trans.t is „„t cn.le.l Nvhilc the «o„cls arc in the hands of a carrier or nii.Ullc-man. A messen-er has no greater authority, ex olhc.o, than a nVuUUeMnan. exceptlnfj as the insolvent law expressly prescribes. In lliUiard's Bankruptcy (pa-e lo.) the olhce of „ messenger is likened to that of a sheriff under a wr.t. He becomes merelv the recipient of pn.perty. The t.tlc of the assignee when'appointed, dates back of the appointment of a messenger. Until appointment of assignee, the bankrupt h.m- self is a proper person to tender money for the redemption ol lands sold for taxes. Hampton v. Rouse, 22 Wall. 203. See Stevens v. Palmer, 12 Mete. ^C.l. The case cited by the plaintiff, Sutro v. Iloilc, 2 Neb. .86, supports this contention. * Defendant defaulted. CoN-svi.T-Kingman v. Denison, 84 Mich. 6.1; Harris v. Pratt .7 N- Y 2,2; St-vmour V. Newton, 105 Mass. 272; Harris v. Tenney, 85 lex. 2,4. Calahan v. Habcock, 21 Olaio St. 29.?; Aguirre v. Parmlce, 22 Conn. 4S2; Inslee v. Lane, 57 N- "• 4iS, 6<, An.. Rep. S^^^-y"^ Joslyn, 20 Vt. 177. 49 An.. Dec. 7^.8; I-^nsstaft v. St.x 64 Mass. 17., to \..i Rep. 49; Diel.l v. McCor.nacIc, 143 Va. St. 5S4; Poole v. R. Co., 58 Tex. 134; Mason v. Wilson, 43 Ark. 172; Buckley v. Fiuness, 17 Wend. 504. § 122. Same-Rights of assignee of bill of lading. NEWIIALL V. CENTRAL PAC. R. CO. [51 Cal. 345-] Supreme Court of Califoruia, 1876. Appeal from district court, fifteenth judicial district, city and county of San Francisco. Crockett, J.— This case comes up on the findings, and there is, therefore, no controversy as to the facts; the only question being, whether the plaintiffs are entitled to judgment on the facts found. The facts necess.iry to a correct under- ItOPKIlTY. NEWHAM. V. CENTRAr- PAC. R. CO. 1(1 lint become allirm or dis- cs on liim no the transit is f a earlier or rity, ex ollicio, law expressly [) the olVice of :y a writ. He le title of the pointment of a i)anlsnipt him- redemption ol" all. 263. See cited by the liis contention. dant defaulted. 'is V. I'riitt, 17 N. Tenney, 85 Tex. B V. P.irmlce, 22 jp. 51; Sawyer v. tix, 64 Mass. 171, ; Poole V. R. Co., iy V. Fiirness, 17 ading. R. CO. district, city and be findings, and : facts; the only :led to judgment i a correct under- "-tanding of the oidy question of law in the case arc, that a mcr- cantile firm in New York sold certain merchandise on credit to .1 viimilar firm in San Francisco, and shipped the same in the u>iiial course of business, by railway, to the vendees as con- --ignees, under bills of lading in the usual form. The bills of lading were received at San Francisco by the consignees before the goods arrived; and while the merchandise was in transit, ill the custody of the defendant as a common carrier, the con- signees failed, and became insolvent, and thereupon the ven- dors notified the defendant in writing that they stopped the (,'oods in transitu ; that the vendees had become in.solvcnt, and the goods were not paid for, and that they must not be deliv- ered to the consignees, but to the vendors. The plaintiffs then were, and for many years had been, auctioneers and commis- sion merchants, doing business in San Francisco, and had been in the habit of receiving from the consignees bills of lading, and ooods under them, for sale on commission. About two hours after the notice of stoppage in transitu was served upon the defendant, the consignees indorsed and delivered the bills of lading to the plaintiffs, who, on the faith thereof and of the jjoods named therein, "advanced a sum of money to the con- signees in the usual course of business;" and the sum so advanced was to be reimbursed out of the proceeds of the goods', which were to be sold at auction by the plaintiffs. At tiie time of the indorsement and transfer of the bills of lading to the plaintiffs, they had no notice that the consignees were in failing circumstances, or had failed, or that any notice of stop- page in transitu had been served upon the defendant. While the goods were still in the possession of the defendant as a com- mon carrier, the plaintiffs, as holders, exhibited to the defend- ant the bills of lading, tendered the charges, and demanded a delivery of the goods, which was refused, and the action is to recover their value. The question involved being one of great practical import- nnce, it has been discussed by counsel both orally and in printed arguments, with learning and ability. But after the most careful research, they have failed to call to our attention a single adjudicated case in which the precise question under review has been decided or discussed. There are numerous 46 \ 7^3 MOOES O. OnXAlNINO TITLE TO PHUSONAI, PUOPEaTV. • ^t tViP hill of lad (V, WHO took it in goou S'r T^ con -dLlon, £ ...e ,.s.,a. course o, taitn, lor a %aiu.i ipiriino' case on .„.i„css before .he »«'-P-;„2TfT"rJR *' author- this noint is Lckb arrow v. Mason (.2 leim ^y, Xhieh ha, been almost ""'--"^ -■'^X; Th . A ^^^rf vviitprs in th s countrv and in bngiana. xncii- courts and >«■"■«'»:" ^,,,.,„ „„ „„ poi„, ,dj„Ji. :"! :t "c °e i w Id be useless to recapitulate them here. B,T. 'tporTan. o ascertain the principle, which ..nderl.e t:j'd';isL,..ha..e..<..^^^^^^^^^^^^ ^rsi. td':a;x::i= ::^z 'sl th^; .. vendee n„t ,t ■ fntthe. settled y J ^^^ ^^ ^ ^^^^^ ^^^ p„,. S r r:* 1: con'std'erlion belore the rl.ht o. .oppa.e *rerci,ed, the Hen oi .he ™"t thirrseL" » t » assignee, on the well k"°-" P""-P'= ^'^ j.V;;;", ".e „f the no. be enforced as agamst a bona ^.M^'J ^ „„do, and ,.,al title. In f-^-^;,'' ''n'd li "c r ainly the light assignee be cons^er.d H-' ( f J'.^,^ ^^^ ,^^„.,/,„„ c,„ „e mos. favorable .o .lie ""do' ^_^^ ^ ^^^^| regarded), .he rnle «PP "' *» ^^^^^ ,', 's, ?, „ould be diffi- .„d a person dealing with b,„ " *;"■ -.^_^^.^__^ ^.^^^^,^ rrtTsTcirrur's-as render the hi;, of lading not , PROPERTY. NEWHAI.L V. CEN'IRAI. PAC. R. CO. 723 . the effect that e vendee, under e, an ai^enr.pt hy b- unavailng as ) took it in good visual course of e leading case on . 63), the authov- [uiesced in by the England. There the point adjudi- itulate them here. s which underlie at extent, if at all, he first, and, as I ese casts, is, that ods passes to the lor for the unpaid the ,(|joods are in )n that the vendee in transit. , the right of stop- gainst the vendee. s, that if the bill of to a bona fide pur- ,e right of stoppage ses as a^aiiisc the a secret trust will ier for value of the c£ the vendor and certainly the light e transaction can he le equities are equal ase it would be difli- d. The vendor has iidee a muninrient of ;iship of the -roods; 1 course of business, nsideration, without he bil' of lading not fairly and honestly assignable," has a superior equity to that of the vendor asserting a recent lien, known, perhaps, only to himself and the vendee. Brewster v. Sime, 43 Cal. 139. These being the conditions which determine and control the relative rights of the vendor and assignee, where the assign- ment is made before the notice of stoppage is given, precisely (lie same principles, in my opinion, are applicable when the assignment is made after the carrier is notified by the vendor. Notwithstanding the notice to the carrier, the vendor's lien continues to be onlv a secret trust as to a person, who, in the language of Mr l>enjamin, in his work on Sales, section S66, takes an assignment of a bill of lading "without notice of such circumstance as renders thi bill of lading not fairly and hon- estly assignable." The law provides no method by which third persons are tj be affected with constructive notice of acts tran^-piring between the vendor and the carrier; and in dealing with the vendee, whom the vendor has invested with the legal title and apparent ownership of the -oods, a stranger, advanc- ing his money on the faith of this ap^ cntly good title, is not bound, at his peril, to- ascertain whether, possibly, the vendor may not have notified a carrier — it may be on some remote portion of the route — that t! e goods are stopped in transitu. If a person, taking an assignment of a bill of lading, is to encounter these risks, and can talie the assignment with safety only after he has inquired of the vendor, and of every carrier ttirough whose hands the goods are to come, whether a notice of stoppage in transition has been given, it is quite certain that prudent persons will cease to advance money on such securities, and a very important class of commercial transactions will be practically abrogated. In my opinion the judgment should be alhrmed, and it is so ordered. Consult — Illsey v. Stubbs, 9 Mass. 65; Pattfson v. Culton, 33 Ind. 240, 5 Am. Rep. 197 ; Eaton v. Cook, 32 Vt. 58 ; Naylor v. Dennie, 8 Pick. 19S, 19 Am. Deo. 319; Rucker v. Donovan, 13 Kan. 251, 19 Am. Rep. 84; Lee V. Kimball, 45 Me. 172. y leamnn 7.4 MODES or OBTAINING TITLE TO PEKSONAL PKOPKHTV. § 123. The buyer's remedies-Daxnages for nondelivery. WHITMARSH v. WALKER. [I Met. 313O Safrcme Judicial Court of Massachusetts. 1840. T This iction is founded on a parol agreement, Wilde, J.— ihis acuon ,„,,.„ the olaintiff two thou- thereby the d=ten^- J- (L.) 51^- §124. Same-Replevin, when title has passed. SCUDDER V. WORSTER. [II Cush. 573.] Supreme Judicial Court of Massachusetts, jSjJ. Dewey J —This case is submitted upon an agreed state- ,T,ent' of Jacts, upon which the court are to enter judgment The first question presented, that of proper pleadings and specification of defense, would hpve been more properly raised, had the case taken the ordinary course of a trial by jury By making a statement of facts, and asking the judgment of th Tourt fhereon, the parties are understood to have waived all questions as to the formal pleadings, unless those q-st.ons are I direct terms reserved For obvious reasons this ought to be so, as the opportunities for amendments of the pleadings would be much greater, and they could be more conveniently Tllowed in the earlier stages of the case. The precise objec- ti^n t'ken by the plaintiff as to this matter is, that the defend- I'lby .leading' the general issue without a specification dleging he property in themselves in the articles replevied admit le property in these articles to be in the plaintiff, and deny only the taking of the same. n^ ROI'KRTV. he exercised he plaintiff's ink it, tlierc- iction n'.ready 31- a valualjle : tvees and to to sever them CO do it, and is responsible an the verdict. me, 62 Mo. 350; . Y. 1 14 J Parker )ed. SCUDDER V. WORSTER. 727 its, iSsJ. 1 agreed state- nter judgment, pleadings and properly raised, 1 by jury. By dgment of this lave waived all se questions are IS, this ought to )f the pleadings ire conveniently le precise objec- ;hat the defend- a specification tides replevied, :he plaintiff, and If this were so, yet in a case when the right of property was in fact the real matter in controversy, and the defendant had through some misapprehension omitted to set forth his claim of right of property, an amendment ought to be allowed to that effect, upon proper terms, if on trial before a jury, or the facts discharged and the case sent to trial, if the case were submitted to the court upon an agreed statement of facts, if it were nec- essary to secure the defendant a hearing upon the merits of the case. But in the present case we think the right of the defendants to assert their property in the articles replevied is not concluded by the form of the pleadings: Jirst, for the rea- son already assigned, that the parties have made a case upon a statement of facts, and thus waived the objection as to the form of the pleadings; and, secondly, because under our statute of 1S36, chapter 273, r.bolishing special pleading, and allowing no other plea than the general issue, that was properly pleaded, and no call having been made for any specification of defense, and no objection taken to its omission, until the argument was heard here upon the statement of facts, it was too late to raise the point. Miller v. Sleeper, 4 Cush. 369. Nor can the plaintiff aid his case by reference to his writ commanding the officer to replevy one hundred and fifty barrels of pork, "the property of the plaintiff," and the' return indorsed thereon by the officer that "he had replevied the within-mentioned prop- erty." An officer's return, however conclusive as to the serv- ice of process, settles nothing of the right of property of the parties. This case must be decided upon the result we shall come to upon the principal question so fully argued, whether the property in the one hundred and fifty barrels of pork ever passed from the vendors by a sale so far complete as to author- ize the plaintiff to maintain his action of replevin for the same. It appears from the facts stated, that on February 10, 1S50, a contract was made by the defendants with Secomh, Taylor & Company, to sell them two hundred and fifty barrels of pork bninded "Worcester '.d Hart;" that a bill of sale of the pork was made and delivered to t' -m, and they gave the defendants their negotiable promissory notes of hand therefor, payable in six months ; that it was further agreed that the pork should remain in defendants' cellar on storage, at the risk and expense of the purchasers ; that Secomb, Taylor & Company, on the thirteenth \ 728 MODES OF OnXAINING TITLE TO PERSONAL PKOrERTY. day of May, 1S50, sold one hundred barrels of the pork to one Lang, who received the same of the defendants upon the order of Secomb, Taylor & Company; that on the twenty-seventh of May, 1S50, Secomb, Taylor & Company sold the plnintiff one hundred and fifty barrels, with an order on the defendants therefor. The next day the plaintiff gave notice to the defend- ants of the purchase, and requested them to hold the same on storage for him, to which the defendants assented. On the twenty-fifth of June, Secomb, Taylor & Company became insolvent, and on the same day the plaintiff called upon the defendants for the purpose of recovering the one hundred and fifty barrels of pork, but the defendants refuse to allow him to do so. On the next day a more formal demand, accompanied by an offer to pay storage, was made, which being refused by the defendants, an action of replevin was instituted, and one hundred and fifty barrels of pork, the same now in controversy, were taken and removed from said cellar and delivered to the plaintiff. The further fact is stated in the case, and it is this which raises the question of property in the plaintiff, that the pork bargained and sold in the manner above stated was in the cellar of the defendants, and a parcel of a larger quantity of the same brand, and also with some of a different brand, and so con- tinued parcel of a larger quantity of similar brand, up to the time of the suing out of the plaintiff's writ of replevin, though this fact was not at the time of the sale stated to the purchasers, or to the plaintiff when he purchased of Secomb, Taylor & Company. Had these two hundred and fifty barrels of pork been a separate parcel, or had the parties designated them by any visible mark, distinguishing them from the residue of the vendor's stock of pork, the sale would clearly have been an absolute one," and the property would at once have passed to the purchaser. There was nothing required to have been done but this separation from the general mass of like kind to have placed the sale beyond all question or doubt as to its validity. The cases cited by the plaintiff's counsel fully establish the position, that what was done in this case would have trans- ferred the property in the pork, if the sale had been of all the pork in the cellar, or of any entire parcel sepurated from the residue, or if the two hundred and fifty barrels had some OPERTY. pork to one on the order enty-seventh the plnintiff ; defendants ) the defend - the same on 2d. On the jany became ed upon the hundred and illow him to accompanied g refused by ited, and one I controversy, ivered to the is this which that the pork is in the cellar :y of the same , and so con- nd, up to the Dlevin, though he purchasers, mb, Taylor & jarrels of pork lated them by residue of the have been an lave passed to ave been done : kind to have to its validity. y establish the uld have trans- leen of all the -ated from the rels had some SCUDDER V. WOUSTEU. 729 descriptive mark distinguishing them from the other barrels not sold. The difficulty in the case is, in maintaining that m the absence of each and all these circumstances, distinguishing the articles sold, the particular barrels of pork selected by the officer from the larger mass when he served this process, were the property of the plaintiff, or had ever passed to him. In addi- tion, however, to the numerous cases cited to establish the gen- eral principles contended for on the part of the plaintiff, and which would have been decisive, if it had been a sale of all the pork in the cellar, or a particular parcel, or certain barrels having descriptive marks which would enable the vendee to separate his own from the residue, were cited several more immediately bearing upon the present case, and were properly not separable, has been held to pass to the vendee. The lead- ing case relied upon is that of Pleasants v. Pendleton, 6 Rand. 475. This was an action by the vendor to recover the price of one hundred and nineteen barrels of flour sold to the defendant. No other objection existed to the validity of the sale, except that the one hundred and nineteen barrels were a parcel of one hundred and twenty-three barrels, all of similar kind, in the same warehouse. There were certain brands or marks on the entire one hundred and twenty-three barrels. The f^our was destroyed by fire vvhil? on storage, and the vendee refused to pay for the one hundred and nineteen, upon the ground that the sile was not perfected for want of separation from the one bundled and twenty-three barrels. The court refused to sus- tain the defense, and gave judgment for the plaintiff. In reference to this case Grimke, J., in Woods v. McGee, 7 Ohio, 127, says: "It is impossible to divest ourselves of the impres- sion that the small difference between the aggregate mass and the quantity sold, the former being one hundred and twenty- three barrels and the latter one hundred and nineteen, may liave influenced the. decision. It was 4 hard case, and hard cases make shipwreck of principles." Jackson V. Anderson. 4 Taunt. 24, was an action of trover to recover for the conversion of one thousand, nine hundred and sixty-nine Spanish dollars. It appeared that the amount had been transmitted to a consignee for the use of the plaintiff, but they were in a parcel of $4,918, all of which came into the hands of the defendant. Among other points raised at the 730 MODES OF OBTAINING TITKE TO PERSONAL rHOPEUTY. argument was this, that there was nothing to distinguish the $1,969 from the entire mass; that there had liecn no separa- tion, and of course the plaintiff had no property in any partic- uhu- portion of the money. The point, it s-eems, was not made at the trial before the jury, but suggested by the court during the argument before the full court, and this is stated by the reporter; the court interrupted the counsel, and intimated a strong doubt, as there was nothing to distinguish the $1,969 from the remaining contents of the barrel, whether the action could lie. At a future day the court gave judgment for the plaintiff. The objection was overruled upon the ground that the defendant had disposed of all the dollars, consequently he had disposed of those belonging to the plaintiff. The case of Gardner v. Dutch, 9 Mass. 427, is apparently the strongest case in favor of the plaintiff. The case was re- plevin against an officer who had attached goods as the property of Wellman and Ropes. The plaintiff had seventy-six bags of coffee, to which he became entitled as owner, upon an adjust- ment of accounts of a voyage he had performed for Wellman and Ropes, but the bags belonging to the plaintiff were in no way distinguished by marks, or separated from the other coffee of Wellman and Ropes. The plaintiff on his arrival at Salem, from his voyage, delivering the entire coffee to W^ellman and Ropes, taking their receipt "for seventy-six bags of coffee, be- ing his adventure on board schooner Liberty, and which we hold subject to his order at any time he may please to call for the same." The point taken in the case was that the plaintiff had not the sole property, but only an undivided interest, and so could not maintain replevin. The court ruled that the plaintiff was not a tenant in common, bu^ might have taken the number of bags to which he was entitled, at his own selection, and might maintain his a^Mon. This case, on the face of it, seems to go far to recognize the right of one having a definite number of barrels of any given articles mingled in a common mass, to select and take, to the number he is entitled, although no previous separation had taken place. It is, however, to be borne in mind in reference to this case, that it did not arise between vendor and vendee. The interest in the seventy-six bags of coffee did not originate by purchase from Wellman and Ropes. They became the ^■M lOPEUTY. SCUDDEK V. WOUSTEK. 731 istinguish the n no separa- n any partic- was not made I court (hiring stated by the 1 intimated a h the $1,969 ler the action ment for the ; ground that isequently he is apparently case was re- s the property ty-six bags of on an adjust- for Wellmau 'i were in no he other coffee ival at Salem, IVellman and of coffee, be- nd which we se to call for at the plaintiff interest, and uled that the lave taken the >wn selection, recognize the of any given \ take, to the separation had i in reference : and vendee, not originate ly became the specific property of the plaintiff in that action, on an adjust- ment of an adventure, the whole proceeds of which were in his h.inds, and separated with the possession, only when he took tlieir accountable receipts for seventy-six bags, held bv them on Ills account. It did not raise the questioUi here so fully dis- cussed, as to what is necessary to constitute a delivery, and how far it was necessary to have a separation from amass of articles, to constitute a transfer of title. Perhaps the circumstances may well have warranted that decision, but we are not satisfied that the doctrine of it can be properly applied to a case where tlu- party asserts his title, claiming only as a purchaser of a specific number of barrels, there having been no possession on his part, and no separation of the same from a larger mass of articles similar in kind, and no descriptive marks to designate them. On the other hand, in support of the position that this sale was never perfected, for want of such separation of the particu- lar barrels on account of the plaintiff, or some designation lof tiiem from others of like kind, there will be found a strong^ weight of authority, and to some of the most prominent cases I will briefly refer. Thus, in the case of Hutchinson v. Hunter, 7 Barr, 140, which was an action of assumpsit to recover pay- ment for one hundred barrels of molasses sold to the defendant, the same being parcel of one hundred and twenty-five barrels, and the whole destroyed by fire while on storage, and before separation or designation of any particular barrels, it was held that the plaintiff could not recover, the sale never having been consummated. Rogers, J., says: »'The fundamental rule which applies to this case is, that the parties must be agreed as to the specific goods on which the contract is to attach, before there can be a bargain and sale. The goods must b& ascertained, designated, and separated from the stock or quantity with which they are mixed before the property can'pass." He considers the case of Pleasants v. Pendleton, 6 Rand. 475, as decided on erroneous principles. The case of Hutchinson v. Hunter pre- sented a case of a subcontract or sale like the present, and it was urged that this differed the case from what it might other- wise have been, as respects the original vendor. But the court held that this did not vary the case in the matter of the necessity of a separation of the article sold from the greater mass. So 732 MODKS OF OnTAlNlNG TITI.K TO nCUSONAL IMlOrKUTY. in Golden v.OKden,r5Penn. St. R. [3 Havns] 5^^^- vvhcre a contract was made for the sale of two thousand pieces of wal paper, the purchaser {jiving his notes therefor to the vendor, and taking away with him one thousand pieces, and it was a-reed that the other one thousand pieces should remani unt.l called for by the purchaser, upon a question of property m the re- mainh.g one thousand pieces between the assignees of the vendor and the purchaser, it was held that these one thousand pieces not havin<,^ been selected by the buyer, or separated or set apart for him, l)ut remaining mingled with other paper o same description, did not become the property of the alleged buyer, as against an assignment for the be.iefit of the creditors of the vendor. The principle advanced in that case seems to be the sound one: "That the property can not pass untd there be a specific identification in some way of the particular goods which the party bargaiu., for. The law knows no such thmg as a floating right of property, which may attach .tself either to one parcel or the other, as may be found convenient afterward. The case of Waldo v. Belcher, 11 Iredell, 609, was the case of a sale of corn by a vendor, having in his store three thousand and one hundred bushels of corn, and selling two thousand and eight hundred bushels of the same, but the two thousand and eitht hundred bushels were never separated from the three thousand and one hundred, and the whole was, after the sale, destroyed by fire, and it was held that the property in the two thousand and eight hundred bushels did not pass to the vendee though it would have been otherwise had it been a sale of all the corn in the crib. The ground of the decision was, that there had been no separation, that it could not be ascertained which corn was the property of the vendee until it was sepa- rated The purchaser could not bring detinue , because he could not describe the particular thing. This would be equally so as to replevin. The case of Merrill v. Hunnewell, 13 Pick. 213, bears strongly upon the question before us. It was a sale ot nine arches of brick in a kiln containing a larger number, but not separated from the residue or specifically designated. After the vendor had, by other sales, reduced the quantity on hand to less than nine arches, upon a question of property between the vendee and an attaching creditor of the vendor, it was held that the purchaser took no property in the bricks, the sale being I'UOI'KUTY i] 52S, where I pieces of wall the vendor, and it was agreed lin until called :rty in the re- ignees of the one thousand jr separated or jther paper o£ of the alleged jf the creditors case seems to )ass until there particular goods 10 such thing as itself either to Mit afterward." was the case of three thousand ,'o thousand and } thousand and from the three , after the sale, )erty in the two ss to the vendee, en a sale of all :ision was, that t be ascertained ntil it was sepa- because he could 1 be equally so as ;11, 13 Pick. 313, t was a sale of rer number, but lesignated. After [uantity on hand )roperty between indor, it was held ks, the sale being SCUDDEU V. WOHSTER. 733 nf partof a large mass, not delivered nor specifically designated. Bliickburn, in his treatise on Sales, page 20, presents the law on this subject thus: "Until the parties are agreed as to the specific identical goods, the contract can be no more than a con- tract to supply goods answering a particular description, and since the vendor would fulfill his part of the contract by fur- nishing any parcel of goods answering that description, it is ilear there can be no intention to transfer the property in any particular lot of goods more than another, until it is ascertained which are the very goods sold." Examining the facts in the case before us, and applying the principles of the cases last cited, and the approved elementary doctrine as to what is necessary to constitute a sale of property not separated from the mass of like kind, or designated by any descriptive marks, the court are clearly of opinion that the property in the specified one hundred and fifty barrels of pork taken by the plaintiff, under his writ of replevin, had never passed from the vendors, and therefore this action can not be maintained. In the argument of this case on the part of the plaintiff, the case was put as a case of intermixture of goods, and it was argued that such intermixture having taken place, the plaintiff might, for that cause, hold the property as his. But, in fact, there was no such case of intermixture. The entire property was always in the defendants. It was also urged that the defendants were estopped to deny that the one hundred and fifty barrels of pork were the property of the plaintiff, having given a bill of sale of the same, and under the circumstances stated in the statement of facts. Had this been an action to recover damages for the value of one hundred and fifty barrels of pork, this position might be ten- able, and the defendants estopped to deny the property of the plaintiff in such one hundred and fifty barrels. This would be so if an action hai^ been brought against the defendants as bailees of one hundred and fifty barrels of pork, and for not de- livering the same. But the distinction between the case of an action for dam- ages for not delivering one hundred and fifty barrels, and that of replevin, commanding the oflScer to take from the possension of the defendants one hundred and fifty barrels, and deliver 734 MODKS OK onTAIMNO TITI.K I'O l>F.riSONAI, I'nOl'EUTY. tliL' same lo plaintiff as his property, is an ol-, ions one. To .sustain tlic former it is only necessary to show a rij^lit to one hundred and fifty barrels ^^'cnerally, and not any specillc one liundred and fifty l)arrcls ; hut to maintain replevin, the plaintiff must he the owner of some specitic one hundred and llfty bar- rels. If bought, they must be specifically set apart, or designat- ed in some way as his, and not intermingled with a larger mass of like kind owned by the vendor. Judgment for the defendants. Covsri.T— Kennedy V. VVhittieil, 4 Pick. 46C); Piilibrook v. Eaton, 134 Mass. 39S; Kooii V. Brinkerhoft, 39 llun, 130. § 125. Same— The action for breach of warranty. LYON V. BERTRAM. [20 How. 149.] Supreme Court of the United States, fSj^. Mr. Justice Cami'uki.l. — This suit was commenced by the defendants in error to recover the price for a cargo of flour bargained and sold to the plaintiff in error in the city of San Francisco. The judgment of the circuit court was rendered upon a special verdict in favor of the plaintiffs in that court. The verdict finds that on the thirteenth of January, 1S53, th- plaintiffs and Flint, Peahody & Company were jointly owners of a cargo of flour, consisting of two thousand barrels, branded, and which were in fact Gallego, then being on the barque Ork, lying at a public wharf in San Francisco and composing its entire cargo of flour, which inspected one thousand, seven hundred and seventy-one barrels superfine, and two hundred and twenty-nine bad. The firm of Flint, Peabody & Company as agents and part owners on the day aforesaid, concluded the following agree- ment with the defendant: "San Francisco, January 13, 1853. "Sold this day to Joseph H. Lyon, Esq., a cargo of Haxall flour, now on board the barque Ork, lying in this harbor, being about two thousand barrels, on the following terms and condi- IMAGE EVALUATION TEST TARGET (MT-3) z, ^ /. A ,^ W/^.x. #^,^ 1.0 i- IM IlM •^ IM II 2.2 ? -" IlM I.I 1.4 1.6 1.25 Hiotographic Sciences Corporation ■/ \ iV 23 WEST MAIN STREET WEBSTER, N.Y. 145B0 (716) 872-4503 "% V ^ o '-«^ V ^Se & ^q,^ -^^ im CIHM/ICMH Microfiche Series. CIHM/ICMH Collection de microfiches. Canadian Institute for Historical Micrureproductions / Institut Canadian de microreproductions historiques #* ©. mm LYOX V. DERTIIAM. 735 lions, viz.: Joseph II. Lyon, Esq., agrees to pay Messrs. llint, Peabody & Company thirty doUars per barrel for such as shall inspect superfine, and twenty-seven dollars per barrel for such as shall inspect bad ; payment to be made as it may ]ack the article, the contract remains open, and the vendee is put to his action upon the warranty unless it be proved that the vendor knew of the unsoundness of the arti- cle, and the vendee tendered a return in a reasonable time." If the verdict had found that the defendant had sustained any damage from the difference in the brands on the Hour, the price would have been diminished accordingly, and so the defendant might have been indemnified upon an action commenced by himself, alleging a breach of the contract. But without con- sidering whether he could refuse to accept any portion of the flour for the variance from the letter of his contract, we decide that he lost this power when he applied to have paid for and sold the parcels on the twenty-fifth and thirty-first of January, 1853. The defendant pleaded that the several causes of action in the complaint mentioned did not accrue within two years before the commencement of the suit. The Code of California pro- vides that an action upon any contract, obligation, or liabil- ity, founded upon an instrument of writing, except those mentioned in a preceding section, shall be brought within three years, and within two years if founded upon a contract, obligation, or liability, not in writing, except in actions on ai. open account for goods, wares, and merchandises, and for any article charged in a store account. The plea of the defendant does not allege that the cause of action is founded upon a con- tract, obligation, or liability, not in writing, nor show that it falls within the limitation of two years, as pleaded. The com- plaint is framed so as to admit evidence of a contract in writing quite as well as an oral contract, and the evidence shows this action is founded on a written contract. The plea should have contained an averment that the cause of action was not in writing, with such other averments as to show that the bar of the statute pleaded was applicable. A plea can not be sustained which rests for its validity upon a supposed state of facts which may not exist. The plea must be an answer to any case which may be legally established under the declaration. Winston v. The Trustees' University, etc., I Ala. 134, mm ■HOPEIITV. )f a chattel I'c or consent ol remains open, ranty unless it ESS of the arti- able time." sustained any Hour, the price the defendant commenced by t without con- portion of the -act, we decide ;e paid for and rst of January, ses of action in vo years before California pro" ation, or liabil- , except those brought within ipon a contract, in actions on ai. es, and for any if the defendant led upon a Con- or show that it led. The com- f a contract in id the evidence ract. . The plea cause of action i as to show that LYON V. riEllTHAM. 71' It was objected that the proof shows that the assignment by I'lint, reabody& Company was made to the plaintiffs in the suit, ;,nd that the declaration alleges that they assigned their inter- ist in the claim to John Bertram, one of the plaintiffs. The Code of California requires that actions shall be prosecuted in the name of the real party in interest, and that all parties hav- ing an interest in the subject of the action and in obtaining the relief demanded, may be joined as plaintiffs. The plauitiffs are shown tr be the parties jointly interested in the subject of the action, and in, the claim for relief. It is quite immaterial in what proportions they may be concerned. Their case is substantially established when their joint interest is shown, and the error in respect to the degree of the interest of the several parties is not such a variance as will be considered. Judgment affirmed. Consult— Pope v. Allis, 115 U. S. 363; Underwood v. Wolf, 131 111. 437; McClurev.Jefferson, 8s \Vis..!o8; Fairbank Canning Co. v. Met/.- gar, 118 N. Y. 260; Bryant v. Isburgh, 13 Gray, 607; Branson v. Tur- ner, 77 Mo. 4S9. s its validity upon The plea must gaily established tees' University, rJ7J».v f,7Ei. 1 ^mAim