■f;::^ '^V; M'"^:..i-V'.^;'C'./-r , •■',J''!f:OJ ■;. ■■. ;-^- ;;' rft'. Jr. UNIVERSITY OF CALIFORNIA AT LOS ANGELES A SELECTION OF CASES ON THE LAW OF SALES OP PERSONAL PROPERTY. BY SAMUEL WILLISTON, WELD PROFESSOR OF LAW IN HARVARD UNIVERSITT. SECOND EDITION, CAMBRIDGE, MASS.: THE HARVARD LAW REVIEW PUBLISHING ASSOCLA.TION. . 1905. Copyright, 189^, By Samuel Willistok. r PRINTED BY H. O. HOUGHTON tt CO. CAMBRIDGE, MASS. U.S.A. J ^ CONTENTS. CHAPTER I. SUBJECT MATTER OF SALE. PAGE Section I. At Law 1 Section II. In Equity 11 CHAPTER 11. EXECUTORY AND EXECUTED SALES. Section I. Unconditional Sales of Specific Goods to which nothing remains to be done , . 25 Section II. Sales of Specific Goods to which some- thing REMAINS TO BE DONE 33 Section III. Sales of Specific Goods, conditional upon PAYING OR securing THE PrICE ... 69 Section IV. Sale of Goods not specified 89 Section V. Specification of the Goods by Subsequent Appropriation 123 Section VI. Transfer of Property by Documents of Title and Reservation of Jus Dispo- NENDI BY the VeNDOR 173 Section VII. Transfer of Title, when Goods are sent C. 0. D 318 CHAPTER III. EFFECT OF FRAUD AND RELATED MATTERS. Section I. Fraud on the Seller 327 Section II. How far Retention of Possession by the Seller is fraudulent 376 Section III. How far Deuvery is essential to the Transfer of Title 402 Section IV. Factors and Factors Acts 422 IV CONTENTS. CHAPTER IV. SPECIAL RIGHTS AND REMEDIES OF THE SELLER, Section I. Recovery of the Price . 509 Section II. Liens and their Enforcement .... 517 Section III. Stoppage in Transitu 564 CHAPTER V. SPECIAL RIGHTS AND REMEDIES OF THE BUYER. Section I. Inspection 646 Section II. Warranty 668 A. Express Warranty 668 B. Implied Warranty 686 (a) Warranty of Title 686 (h) Warranty of Quality 693 c. Remedies for Breach of Warranty 733 CHAPTER VI. STATUTE OF FRAUDS. Section I. "Contract for the Sale of" Section II. "Goods, Wares, and Merchandises" . . Section III. "For the price of £10 or upwards" . . Section IV. "Shall be allowed to be good" . . . Section V. " Except the Buyer shall accept part of the Goods so sold, and actually receive THE same" Section VI. "Give something in earnest to bind the Bargain or in part of Payment" . . Section VII. "Or that some Note or Memorandum in W' RITING OF the SAID BARGAIN BE MADE AND SIGNED BY THE PARTIES TO BE CHARGED BY SUCH Contract, or their Agents there- unto LAWFULLY AUTHORIZED" . . . . 780 798 823 827 830 919 928 APPENDIX. Sale of Goods Act 1073 TABLE OF CASES. Ackerman v. Rubens Akeley v. Miss. Boom Co. Aldridge v. Johnson Alexander v. Gardner Allen V. Elmore Ames V. Moir Amsinck v. American Insurance i Anchor MiU Co. v. Burlington Co. Anderson v. Morice Andrew v. Babcock Anonymous, Y. B. 11 Edw. 6. 10 Y. B. 17 Edw. IV. 1 Y. B. 18 Edw. IV. 14 Y. B. 18 Edw. IV. 21. 1 Y. B. 20 Hy. VII. 8. 18 Y. B. 21 Hy. VII. 6. 4 Keilwey, 77, pi. 25 Keilwey, 69, pi. 2 Artcher v. Zeh Atherton v. Newhall Atkinson v. Bell Austen v. Craven Azemar v. Casella B Babcock v. Lawson Bailey v. Hervey V. Sweeting Baldey v. Parker Barber v. Meyerstein Barnard v. Campbell V. Kellogg Beckwith v. Talbot Bement v. Smitli Benedict v. Schaettle Bentall v. Bum Bemdtson v. Strang Bethell v. Clark Bill V. Bament Bird V. Munroe Bishop V. Shillito Blackman v. Pierce Blenkinsop v. Clayton Bodenhammer v. Newsom Bohtlingk v. Inglis Bridgford v. Crocker Brigg V. Hilton PAGE PAGE Bristol V. Wilsmore 327 538 Brown v. Whipple 1034 558 n. Brownfield v. Johnson 123 n. 144 Bryant v. Isburgh 756 133 Burghall v. Howard 565 65 Burnby v. Bollett 731 561 Bussey v. Barnett 70 Co. 827 Butterfield v. Burroughs 669 Ry. Buxton V. Rust 1018 285 160 C 980 n. IV. Calcutta &c. Navigation Co. v. De 669 n. Mattos 29 n. 123 Caldwell v. BaU 179 90 n. Campbell v. The Mersey Docks, &c. 152 70 n. Carter v. Toussaint 842 90 n. Champion v. Plummer 957 69 n. Chandelor v. Lopus 668 89 Chaplin v. Rogers 830 90 n. Chase v. Denny 21 921 Clark V. Fey 1065 n. 915 Clay V. Yates 783 130 Clayton v. Andrews 780 93 Coddington v. Goddard 972 742 Cole V. Northwestern Bank 447 Collins V. Ralli 485 Commercial Bank v. Armsby Co. 255 V. Hurt 498 344 V. Lee 595 533 Commonwealth v. Fleming 321 944 Constantia, The 632 n. 823 Cooke V. Millard 797 n. 216 Cookson V. Swire 386 359 Crummey v. Raudenbush 557 711 Cuff V. Penn 1042 1031 Cummiijgs v. Arnold 1061 509 Cundy v. Lindsay 331 632 n. Cusack V. Robinson 870 843 597 D 616 851 D'Aquila v. Lambert 565 1066 Day V. Pool 758 69 Dempsey v. Gardner 406 626 Diem v. Koblitz 630 839 Doane v. Dunham 655 372 Dodsley v. Varley 847 591 Doherty v. Hill 977 537 Dorsey v. Pike 906 764 n. Douglas V. People's Bank 309 VI TABLE OF CASES. Dounce r. Dow 727 Downer v. Thompson 165 Dows IK Perrin 267 Drexel v. Pease 309 n. Drutninond v. Van Ingen 706 Duke r. Shackleford 535 Durrell v. Evans 1004 Dustan v. McAndrew 512 n. E Earl of Bristol v. Wilsmore 327 Edan v. Dudfield 848 Edgerton v. Hodge 924 Edwards v. Harben 379 Egerton v. Mathews 953 Eichholz V. Bannister 690 Elmore v. Stone 837 Emery's Sons v. Irving Nat. Bank 276 English V. Spokane Commission Co. 779 n. Evans v. Hoare 935 V. Marlett 173 V. Roberts 799 Fairbank Canning Co. v. Metzger 765 Falk, Ex parte 608 Falke v. Fletcher 213 FaUs of Neuse Mfg. Co. v. Hen- dricks 980 n. Farina v. Home 855 Farmers' &c. Bank v. Logan 289 Farquharson v. King 430 First Nat. Bank v. Ege 306 Fitz, Ex parte 374 Foot V. Marsh 110 Forbes v. Boston & Lowell Rail- road 282 Fortesque v. Crawford 980 n. Fragano v. Long 128 Frank v. Ingalls 469 n. Freeland v. Ritz 1038 n. Frostburg Mining Co. v. New Eng- land Glass Co. 909 Fuentes v. Montis 440 G Gabarron v. Kreeft 232 Garbutt v. Watson 782 Gavlord Manufacturing Co. v. Al- len 761 Gibson v. Holland 947 Gillett V. Hill 95 Glyn V. The East and West India Dock Co. 236 Goddard v. Binney 794 Bodts V. Rose 210 Golding, Davis & Co., Ex parte 604 Goodwin v. Mass. Loan & Trust Co. 369 n. Goom V. Aflalo 985 Gould V. Bourgeois 692 n. Grafton v. Cummings 971 n. Grant v. Fletcher 984 Grantham v. Hawley 1 Green v. Armstrong 815 H Hallgarten v. Oldham 408 Hanson v. Marsh 955 V. Meyer 33 Harkness v. Russell 74 Harman v. Reeve 825 Hawes v. Forster 987 V. Watson 39 Hayes v. Jackson 956 n. Henderson v. Williams 426 Heywood's Case 90 n. Heyworth v. Hutchinson 740 Hickman v. Haynes 1056 Hinde v. Whitehouse 831 Hirth V. Graham 818 Hodges i;. Rowing 980 n. Holmes v. Evans 980 n. V. Gregg 657 V. Tyson 682 Holroyd v. Marshall 11 Hull V. Hull 5 Humble v. Mitchell 822 Hunt V. Hecht 862 Huschle V. Morris I Ingalls V. Herrick 523 n. 392 Isherwood v. Whitmore 650 Jackson v. Stanfield 829 n. Jacob V. Kirk 1017 Jendwine v. Slade 669 Jenner v. Smith 156 Johnson v. Credit Lyonnais Com- «• pany 460 V. Dodgson 933 Jones V. Eveleth 623 V. Just 693 tj. Tye 980 n. K Keeler v. Goodwin 119 Kellogg Bridge Co. v. Hamilton 717 Kemp V. Falk 608 Kenner v. Harding 677 n., 681 n. Kenworthy v. Schofield 983 Key V. Cotesworth 205 Kibble V. Gough 874 Kiell, In re 608 Kimberly v. Patchin 102 Knights V. Wiffen 98 TABLE OF CASES. Vll Lane v. Chadwick 325 Lanfear v. Sumner 402 Langfort v. Tiler 517 Langton v. Higgins 149 Lavery v. Pursell 812 n. Lawder Co. v. Mackie Grocery | Co. 661 Leask v. Scott 348 Lee V. Butler 470 V. Griffin 786 Lemed v. Wannemacher 1038 Lickbarrow v. Mason 566 LiUywhite v. Devereux 853 Lincoln v. Gallagher 654 Lingham v. Eggleston 60 Long V. Millar 1025 Lorymer v. Smith 646 LouisviUe Varnish Co. V. Lo- rick 1037 n. Low V. Pew 2 Lowe V. Harris 980 n. Lyon V. Bertram 747 M McArthur Co. v. Old Second Bank 314 McCormick v. Kelly 674 McElwee v. Metropolitan I Lumber Co. 548 McGill V. Chilhowee Lumber Co. 639 | McKibbin v. Martin 394 Maclean v. Dunn 939 McNeal v. Braun 168 Maddison v. Alderson 828 n. Margetson v. Wright 672 Marsh v. Hyde 913 Marshall v. Green 808 V. Lynn 1048 Martindale v. Booth 382 V. Smith 518 Martineau v. Kitching 53 Marvin v. Wallis 867 Mead v. Parker 980 n. Meade v. Smith 414 Mellon V. Davison 980 n. Merritt v. Clason 937 Mirabita v. Imperial Ottoman Bank 524 Missouri Pac. Ry. Co. v . Heiden- heimer 597 n. Mixer v. Howarth 789 Moakes v. Nicholson 215 Mondel v. Steel 737 Moors V. Kidder 298 V. Wyman 287 Morley v. Attenborough 686 Morrison v. Woodley 121 Morton v. Tibbett 857 Mucklow V. Mangles 124 Murchie v. Cornell 724 N Newell V. Radford 960 Newhall v. Central Pac. Railroad 628 New York Trust Co. v. Lipman 493 Nicholson v. Bower 869 Noble V. Ward 1050 O Ogg V. Shuter Ogle V. Atkinson Oliver v. Hunting Olyphant v. Baker Page V. Morgan Parker v. Baxter V. Staniland V. Wallis Parsons v. Loucks Parton v. Crofts Paterson v. Tash Paul V. Reed Pease v. Gloahec Peirce v. Corf Peters v. Elliott Pettit V. Mitchell Philadelphia Whiting Co. v. troit Works Pickering v. Busk Polenghi v. Dried Milk Co. Pope V. Allis Poulton V. Lattimore Power V. Barham Putnam v. Glidden R Randall v. Newson Rawson, Re Rhodes v. Mooney Rodgers v. Jones V. Phillips Rodliff V. Dallinger Rodwell V. Phillips Rogers v. Woodruff Rohde V. Thwaites Rondeau v. Wyatt Rowley v. Bigelow Rugg V. Minett S De- 520 188 1028 29 877 367 798 864 795 1012 422 71 340 1021 260 648 658 423 664 753 733 670 541 700 374 546 917 890 334 807 n. 683 844 781 619 36 Sainsburv v. Matthews 808 Salmon Falls Mfg. Co. v. Goddard 962 Saltus V. Everett 352 Sanders v. McLean 245 n. Sanger v. Waterbury 67 Saunderson v. Jackson 930 Schneider v. Norris 931 Scudder v. Worster 114 VIU TABLE OF CASES. Sewell V. Burdick Shaw ?'. Gilmore i'. Railroaxi Co. Shepherd v. Harrison Sherwin v. Mudge Sliindler v. Houston Sieve\\Tight v. Archibald Siimnons v. Swift Simon v. Anglo-American Tel. ' r. Meti\ier Smith V. Edwards V. Hale V. Surman Snee v. Prescott Southerne v. Howe Spalding v. Ruding Spooner v. Cummings State V. O'Neil Stead V. Dawber Stevens v. Wilson Stewart v. Cook Stoddard v. Ham Stone V. Browning Street v. Blay Stroud V. Pierce Studer v. Bleistein Swan wick v. Sothem Tallman v. Franklin Tarling v. Baxter Taylor v. Smith Tempest v Fitzgerald Thacher v. Moors Thayer v. Luce Thompson v. Alger V. Conover i\ Gardiner Thornton v. Charles V. Wynn Thurston v. Blanchard Townsend v. Hargraves Tripp V. Armitage Tufts V. Griffin Turley v. Bates Turner v. Trustees 245 Tuthill V. Skidmore 639 n. 10 Twyne's Case 376 271 224 u 59 885 Underwood v. Wolf 772 992 42 V Co. 102 n. 928 Vandenbergh v. Spooner 959 166 Van Duzor v. Allen 370 757 n. Varley v. Whipp 745 803 Vincent v. Germond 883 173 669 n. W 595 Wait V. Baker 197 87 Walker v. Nussey 919 318 Walley v. Montgomery 186 1046 Ward V. Taylor 258 482 Warner v. Martin 507 n. 954 Wheeling &c. R. Co. v. Koontz 625 337 n. White V. Garden 338 898, 902 V. Solomon 513 735 Whitehouse v. Frost 90 681 n. Whitmarsh v. Walker 813 764 n. Whitney v. Heywood 692 n. ^ Wigton V. Bowley 264 Wilkins v. Bromhead 142 Wilkinson v. King 423 Wilmshurst v. Bowker 191 1038 n. Wilstack V. Heyd 1038 n. 26 Wiltse V. Barnes 665 880 Wiseman v. Vandeputt 564 840 Withers v. Greene 751 473 Wolcott V. Mount 677 1037 n. Woods V. Russell 125 919 n. Wriglit V. Dannah 943 .531 Wrigley v. Cornelius 543 1015 990 Y 751 n. 329 Young V. Matthews 155 828 n. 137 Z 515 48 Zabriskie v. Central Vermont Rail- 201 road Co. 769 CASES ON SALES. CHAPTER I. SUBJECT MATTER OF SALE. SECTION I. At Law. GRANTHAM v. HAWLEY. In the Common Pleas, Trinity Term, 1616. [Reported in Hohart, 132.] " Robert Grantham brought an action of debt upon an obligation of £40 against Edward Hawley, the condition whereof was that if a cer- tain crop of corn growing upon a certain piece of ground, late in the occupation of Richard Sankee, did of right belong to the plaintiff, then the defendant should pay him for it £20. Now the case upon plead- ing and demurrer fell out thus : That one Sutton was seised of the land, and 30 Eliz. in April made a lease of it to Richard Sankee for twenty-one years by indenture, and did thereby covenant, grant to and with Sankee, his executors and assigns, that it shall be lawful for him to take, and carry away to his own use, such corn as should be grow- ing upon the ground at the end of the term. Then Sutton conveyed the reversion to the plaintiff, and John Sankee, executor to Richard, having sowed the corn, and that being growing upon the ground at the end of the term, sold it to the defendant. And it was argued by Hut- ton for the plaintiff that it was merely contingent whether there should be corn growing upon the ground at the end of the term or not. Also the lessor never had property in the corn, and therefore could not give nor grant it, but it sounded properly in covenant ; for the right of the corn standing in the end of the term being certain, accrues with the land to the lessor, and it was said to be adjudged. And it was agreed by the court that if A seised of land sow it with corn, and then convey it away to B for life, remainder to C for life, and then B die before the corn reaped, now C shall have it and not the executors of B though 2 LOW V. PEW. [chap. I. his estate was uncertain. Note, the reason of industry and charge in B fails, 3'et judgment in this case was given against the plaintiff ; that is, that the property and very right of the corn, when it happened, was passed away ; for it was both a covenant and a grant, and therefore if it had been of natural fruits, as of grass or hay, which run merely with the laud, the like graut would have carried them in property after the term. Now, though corn be fructus industrialis so that he that sows it may seem to have a kind of property ipso facto in it divided from the laud, and therefore the executor shall have it and not the heirs ; yet in this case all the color that the plaintiff hath to it is by the land which he claims from the lessor which gave the corn. And though the lessor had it not actually in him, nor certain, yet he had it potentially ; for the land is the mother and root of all fruits. There- fore he that hath it may grant all fruits that may arise upon it after, and the property shall pass as soon as the fruits are extant, as 21 Hen. 6. A parson may grant all the tithe wool that he shall have in such a year, yet perhaps he shall have none ; but a man cannot grant all the wool that shall grow upon his sheep that he shall buy hereafter ; for there he hath it neither actually nor potentially. And though the words are here not by words of gift of the corn, but that it shall be lawful for him to take it to his own use, it is as good to transfer the property, for the intent and common use of such words, as a lease with- out impeachment of waste, for the like reason, and not ex vi termini, gives the trees. LOW V. PEW. Supreme Judicial Court of Massachusetts, November Term, 1871. [Reported in 108 Massachusetts, 347.] Replevin by the firm of Alfred Low & Company of a lot of flitched halibut from the assignees in bankruptcy of the firm of John Low & Son, all of Gloucester. Writ dated August 24, 1869. The parties stated the following case for the judgment of the court : — On April 17, 1869, as the schooner "Florence Reed," owned by John Low & Son, was about to sail from Gloucester on a fishing voyage, that firm received §1,500 from the plaintiffs, and signed and gave the plaintiffs the following writing : — " 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 voyage upon wliich she is about to proceed from the port of Gloucester to the Grand Banks, at the rate of five cents and a quarter per pound for flitched halibut, to be delivered to said Alfred Low & Company as soon as said schooner arrives at said port of Gloucester at their wharf. SECT, l] low V. PEW. 3 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 July, 1869, proceedings in bankruptcy were begun against John Low & Son in the district court of the United States for this district, in which they were adjudged bankrupts on August 6, and on August 20 these defendants were appointed the assignees in bankruptcy, and the deed of assignment was executed to them. On Saturday, August 14, the "Florence Reed" arrived at the port of Gloucester on her home voyage, and was hauled to the plaintiffs' wharf; and on the morning of Monday, August 16, the United States marshal took possession of the vessel and cargo under a warrant issued to him on August 6 in the proceedings in bankruptcy, and transferred his possession to the defendants upon their appointment. The catch of the scliooner consisted of about 40,000 pounds of hali- but, and of some codfish. The plaintiffs demanded the halibut of the defendants, and offered at the same time to pay the price of it at the rate of five and a quarter cents per pound, less the $1,500 already paid. The defendants refused the demand ; and the plaintiffs then replevied such a quantity of the halibut as represented the amount of $1,500 at that rate per pound, and offered to receive the rest of the halibut and pay for it at the same rate, but the defendants refused to acknowledge any right whatever of the plaintiffs in or to the fish. If on these facts the plaintiffs were entitled to recover, they were to have judgment for nominal damages ; but if otherwise, the defendants weie to have judgment for a return, with damages equal to interest at the annual rate of six per cent on tlie appraised value of the fish replevied. C. P. Thompson, for the plaintiffs. W. C. Endicott, for the defendants. Morton, J. By the decree adjudging John Low &> 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 their 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 delivery to the plaintiffs of the property replevied, it would been invalid. The plaintiffs therefore show no title to the halibut replevied, unless the effect of the contract of April 17, 1869, was to vest in them the prop- erty in the halibut before the bankruptcy. It seems to us clear, as claimed by both parties, that this was a contract of sale, and not a mere executory agreement to sell at some future day. The plaintiffs cannot 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. 4 LOW V. PEW» [chap. I. parsed to the assignees. The question in the case therefore is, whether \ a sale of halibut afterwards 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 cannot grant personal property in which he has no interest or title. To be able to sell property, he must have a vested right in it at the time of the sale. Thus it has been held that a mortgage of goods which the mortgagor does not own at the time the mortgage is made, though he afterwards acquires them, is void. Jones v. Richardson, 10 Met. 481. The same principle is applicable to all sales of personal property. Rice V. Stone, 1 Allen, 566, and cases cited ; Head v. Goodwin, 37 Me. 181. It is equally well settled that it is sufficient if the seller has a poten- tial interest in the thing sold. But a mere possibility or expectancy of acquiring property, not coupled with any interest, 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 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 own land, but not upon land in which he has no interest. 2 Kent Com. (lOlh ed.) 468 (641), note a; Jones v. Richardson, 10 Met. 481 ; Bellows v. Wells, 36 Verm. 599 ; Van Hoozer V. Cory, 34 Barb. 9 ; Grantham v. Hawley, Hob. 132. The same principles have been applied by this court to the assign- ment of future wages or earnings. In Mulhall v. Ouinn, 1 Gray, 105, an assignment of future wages, there being no contract of service, 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 earnings is coupled with an interest, and the right to them, though contingent and liable to be defeated, is a vested right. In the case at bar, the sellers, at the time of the sale, had no inter- est in the tiling sold. There was a possibility tliat they might catch halibut ; but it was a mere possibility and expectancy, coupled with no interest. We are of opinion that they had no actual or potential pos- session 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 SECT. I.] HULL V. HULL. 5 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. HULL V. HULL. Connecticut Supreme Court, June Term, 1880. [Reported in 48 Connecticut, 250.] Replevin for six colts ; brought to the Court of Common Pleas in New Haven County, and tried before Cowell, J., who found the fol- lowing facts : — The plaintiff is the sister of the wife of Rev. William H. H. Murray. The defendant is the trustee of his insolvent estate. In 1868 or 1869 the plaintiff was employed by Mr. Murray as super- intendent, book-keeper, and cashier of his stock farm at Guilford in this State, the farm consisting of about three hundred acres, with three dwellings and large and commodious barns and stables. From the commencement of such service down to the institution of insolvency proceedings against him in the summer of 1879, she continued in his employment, residing upon the farm constantly, except occasional visits to Boston and the Adirondacks with Mr. Murray's family. Dur- ing this period Mr. Murray was a settled minister in Boston, and resided in that city, spending not more than one month in a year upon his farm. From the commencement of the plaintiff's services until November 12th, 1870, she received no compensation except her board. At that date, being then on a visit to Mr. Murray's family at Boston, he, on account of his indebtedness to her, sold her a brood mare called " Nell," which he then owned and kept in Boston, the mare having never been upon his Guilford farm. At the time of this sale he exe- cuted and delivered to her a bill of sale of the mare, and at the same time, to induce her to continue in his employment as superintendent and book-keeper upon his Guilford farm, he agreed with her that she should have the right to keep the mare upon his farm and rear whatever stock she chose to raise from the mare, he paying all expenses of such keeping, and allowing her the free use of his stallions ; aud that the mare and her progeny should be her compensation for her services as superintendent. On November 18th, 1870, the mare was sent by Mr. Murray to the Guilford farm with two other horses, a stove, and other furniture belonging to him, all billed as freight to him. All the horses were received at Guilford and placed upon the farm. The plaintiff had meanwhile returned from Boston. 6 HULL V. HULL. [CHAP. L In January, 1872, the plaintiff being again in Boston, the mare " Nell " being unproductive, Mr. Murray, being then further indebted to the plaintiff for her services, sold her another blooded brood mare named " Flying Belle," then owned by him in Boston, and which had never been upon his Guilford farm, under a similar arrangement with that in the sale of the mare "Nell," with the agreement that the plaintiff should thereafter have the two mares, and that whatever stock she could rear from them upon his Guilford farm and at his expense, should be her compensation for services. He gave her at the same time a bill of sale of the second mare. But this mare was not sent to the Guilford farm until June 12th, 1872, when it was forwarded by Mr. Murray with three other horses and a buggy consigned to him, which were received and put upon the farm as in the former case. At the time these mares were put upon the Guilford farm the average number of horses kept on the farm by Mr. Murray was three or four, but subsequently a much larger number was kept, and many horses owned by other parties were boarded upon the farm. The mares were worked upon the farm and used by Mr. Murray's family, including the plaintiff, in the same way with the horses belonging to Mr. Murray. The plaintiff has raised from the mare "Nell" four colts, one of which she sold when four years old. The other three are a part of those described in the replevin writ. The plaintiff has had five colts from the mare " Flying Belle," one of which died, one she sold, and tlie other three are the remainder of the six described in the replevin writ. All these colts have been kept on the Murray farm or on land leased by Mr. Murray since they were foaled, under the supervision of the plaintiff, and fed and cared for by his grooms in the same manner as the colts and horses owned by Mr. Murray, and the taxes on them and their colts have been paid by Mr. Murray. The amount of the taxes on the horses of the plaintiff was not given in evidence, but the taxes on them and on Mr. Murray's horses were generally all paid by him at the same time. There was no evidence that at the time of the purchase of these mares by the plaintiff Mr. Murray was indebted to any one. The plaintiff is an unusually active, capable woman, and at the time of the purchases and agreements Mr. Murray intended to deal liberally with her, believing it was to his benefit for her to reside upon and manage his farm, keeping his house there always in readiness for the reception of his family when they should choose to visit the farm ; and to her benefit to accumulate property by the rearing of colts pursuant to the agreement. The plaintiff for more than ten years of faithful and valuable services has received no compensation except her board and these two mares and the progeny reared from them. The mares are now old and of little value, and have been so em- ploved by I\Ir. Murray's family and upon the labor of the farm, under her supervision, as to have more than reimbursed him for all taxes paid by him on her account. SECT. I.] HULL V. HULL, 7 Mr. Murray, about the commencement of 1879, moved from Boston to Guilford, but spent but little time upon the farm, being engaged in business in New Haven. About the middle of June, 1879, he left the State, and has never since exercised any control or supervision over his. farm or personal property in this State. The plaintiff still owns and keeps the mares, and no one else has ever claimed them or either of them since her purchase. On the first day of August, 1879, the six colts were attached by a creditor of Mr. Murray, with nine other colts belonging to him, they being all together, — the mares not being attached, as they were away from the farm. The attaching creditor kept the colts at Guilford for about three months, and then delivered them to the defendant, the trustee in insolvency of Mr. Murray. No attempt was made by the plaintiff to maintain her title to the colts by suit until January 12th, 1880, although she was living during the time at Guilford where the colts were. But as soon as she became aware of the attachment of them she forbade the officer taking them and demanded their immediate return to her. There was no evidence offered as to the financial condition of Mr. Murray other than the facts that the plaintiff's horses were attached as his, and that other horses of his and other of his personal property were attached, and that the defendant was afterwards appointed trus- tee of his insolvent estate. The defendant on the trial offered evidence which he claimed tended to prove that the plaintiff was never the owner of the mares or colts, but tliat Mr. Murray claimed to own them until about the time of the attachment. To rebut this claim the plaintiff produced the book known as Murray's Stock Book, which had always been kept at the barn office at his farm in Guilford, and offered in evidence three entries therein made by Mr. Murray and one Bixby, his confidential friend, under Mr. Murray's direction, in 1873 or 1874, which entries described the mares, and a colt of one of them, and gave the age of each of them, following each of the descriptions with the words, " The property of jNIiss Ida E. Hull, of Guilford, Connecticut." The defendant objected to these entries being received by the court as evidence for the purposes for which they were offered. But the court overruled the objection and received the evidence. Upon the foregoing facts the defendant claimed, and asked the court to hold, that the law was so that the plaintiff was not entitled to take the property from the defendant as such trustee ; that she never became the bond fide owner of the mares and colts ; that there was never any such possession on her part as would entitle her to hold the mares or their progeny against the attaching creditors of the vendor or his trus- tee ^n insolvency ; and that she was guilty of such laches in failing to assert her claim to the property, both before and after the attachment, that she was estopped from now claiming it from the trustee. But the court overruled all of these claims and rendered judgment for the plaintiff to recover the property claimed. 8 HULL V. HULL. [chap. I The defendant filed a motion in error, and also moved for a new trial for error in the admission of evidence. W. K. Toivnsend and /. 11. Whiting, in support of the motion. H. -B. 3Iunson, contra. LooMis, J. The controversy in this case has reference to the owner- ship of six colts, the progeny of two brood mares, whicli the plaintiff, some ten years prior to this suit, purchased in Boston of the Rev. William H. H. Murray. The contract of sale provided that the plain- tiff might take the mares to Murray's farm in this State, of which she was and had been for several years the superintendent, and there keep them as breeding-mares ; and all the colts thereafter foaled from them, though sired by Murray's stallions, were to be the exclusive property of the plaintiff. No attempt has been made by Murray's creditors or his trustee to deprive the plaintiff of the mares so purchased, and they are now in her undisturbed possession ; but the colts, while on Murray's farm on the 1st of August, 1879, were attached by one of his creditors, who subsequently released the property to the defendant as trustee in insol- vency, who had the property in his possession at the time tlie plaintiff brought her writ of replevin. The sole ground upon which the defendant claims to hold these colts ,y^ is, that there was such a retention of possession b}' Murra}' after the ^[li^y/ sale as to render the transaction constructively fraudulent as against '' creditors. The court below overruled this claim, and in so doing we think com- mitted no error. The doctrine as to retention of possession after a sale has no appli- \ cation to the facts of this case. A vendor cannot retain after a sale what does not then exist nor that which is already in the possession of the vendee. This proposition would seem to be self-sustaining. If, however, it needs confirmation, the authorities in this State and else- where abundantly supply it. Lucas v. Birdsey, 41 Conn. 357 ; Capron V. Porter, 43 id. 389 ; Spring v. Chipmau, 6 Verm. 662. In Bellows V. Wells, 36 Verm. 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 neces- sary even as against attaching creditors, and that the 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 all. The esse at bar is within the principle of the above authorities, for it is very clear that the title to the property in question when it first came into existence was in the plaintiff. In reaching this conclusion it is not necessary to hold that the ipares became the absolute property of the plaintiff under Massachusetts law without a more substantial and visible change of possession, or that under our law, the title to the mares being in the plaintiff clearly as SECT. I.] HULL V. HULL. 9 between the parties, the rule imported from the civil law, partus sequi- tur ventrem, 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 clear. It is true, as remarked in Perkins on Conveyances (tit. Grant, § 65), that "it is a common learning in the law that a man cannot grant or charge that which he has not ; " yet it is equally well settled that a future possibility arising out of, or dependent upon, some present right, property, or interest, may be the subject of a valid present sale. The distinction is illustrated in Hobart, 132, as follows : " The grant of all the tithe wool of a certain year is good in its creation, though it may liappen 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 after- wards purchase, is void." It is well settled that a valid sale may be made of the wine a vine- yard is expected to produce, the grain that a field is expected to grow, the milk that a cow may yield, or the future young born of an animal. 1 Parsons on Contracts (5th ed.), page 523, note Jc, and cases there cited ; Hilliard on Sales, § 18 ; Story on Sales, § 186. In Fonville v. Casey, 1 Murphy (N. C), 389, it was held that an agreement for a valuable consideration to deliver to the plaintiff the fii;st 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 accessory to something which he actually has. And in McCarty 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 delivered it to D. Before resting the discussion as to the plaintiff's title we ought, per- haps, briefly to allude to a claim made by the defendant, both in the court below and in this court, to the effect that if the plaintiff's title be conceded she is estopped from asserting her claim. This doctrine of estoppel, as all triers must have observed, is often strangely misap- plied. 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 representing them were ever misled to their injury by any act or negligence on her part. On the contrary, the estoppel is asserted in the face of the explicit finding, that " as soon as the plaintiff became aware of the attachment of her iiorses she forbade the olllcer taking the same, and demanded their immediate return to her." The only fact which is suggested as furnishing the basis for the al- leged estoppel is, that from the first of August, 1879, to the 12th of 10 SHAW V. GILMORE. [CHAP. L 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 au action at law predicated solely on neglect to bring a suit for the period of five mouths ? To recognize such a thing for any period short of the statute of limitations would practically modify the statute and create a new limitation. Furthermore, in what respect have the de- fendant and those he represents been misled to their injury by this fact? The plaintiff never induced the taking or withholding of her property. Aud can a tort-feasor or the wrongful possessor of another's property object to the delay in suing him for his wrong, and claim, as in this case, an estoppel on the ground that his own wrongful posses- sion 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. There was no error in the judgment complained of, and a new trial is not advised. In this opinion the other judges concurred.^ CHARLES SHAW v. ROBERT W. GILMORE. Supreme Judicial Court of Maine, March 19, 18S9. {^Reported in 81 Maine, 396.] Replevin of hay. The plaintiff claimed title under a recorded mortgage, a portion of which is set out in the opinion. The defendant subsequently bought the hay of the mortgagor, without notice of the plaintiff's claim. Further facts appear in the opinion. Crosby and Crosby, for plaintiff. T. H. B. Pierce, for defendant. Haskell, J. The plaintiff claims title to certain hay, cut upon a farm in 1881, by virtue of an equitable mortgage, dated April 19, 1877, of the following tenor : " For a valuable consideration, to me paid by Charles Shaw of Dex- ter, I hereby sell to him all the hay that is to be cut on the farm I have bought of him, and I agree to harvest and safely store the said hay in the barn on the said farm, and keep the same without expense to said Shaw, and deliver the same to him on demand. Twenty-five tons of the said hay is to be reserved from this sale for my own use. It is hereby agreed as a condition in this trade that we are to dispose of the said hay from year to year, to the best advantage, and apply the j)roceeds to the payment of the notes that yearly become due on the payment of said farm. The crop of 1877 is to be applied in pay- ment of the note that becomes due April 14th, 1878, and the crops of 1 Conf. Sawyers. Gerrish, 70 Me. 254; Bates v. Smith, 83 Mich. 347; Battle Creek Bank 7. First Bank, 62 Neb. 825. SECT. II.] HOLROYD V. MAKSHALL. 11* 1878 in payment of the note that becomes due in 1879, and so on from year to year. It is further agreed that I am to keep an amount of insurance on the said hay that will amount to four hundred dollars." This is an action at law, and must be decided upon legal and not equitable principles. It is a maxim of the common law, that a man cannot grant that which he hath not ; but it is well settled, that he may assign that of which he is " potentially, but not actually pos- sessed. He may make a valid sale of the wine that a vineyard is ex- pected to produce, or of the grain a field may grow in a given time." The sale, however, can only operate upon a specific thing, as the grass of a particular field during a specified time that the grantor owned the right to cut and gather it in. Emerson v. E. & i^T. A. Kailway Co., 67 Maine, 387; Earrar v. Smith, 64 Maine, 74. Even in equity, an assignment of wages to be earned in the future, but not under an ex- isting employment, must specify the time during which such wages are to be earned, and the employment from which they are expected to arise ; and the assignment must neither contravene public policy, nor -be inequitable. Edwards v. Peterson, 80 Maine, 367 ; Lehigh Val. K. Co. V. Woodring (Pa.), 9 Atl. Pep. 58. In the present case, the grant purports to be of the yearly crop of hay for an indefinite period of time. The controversy is over the fifth crop, sold by the assignor, who was in possession of the same, to a bona fide purchaser. Under the rules of the common law, the convey- ance must be held inoperative as to the liay in dispute and, therefore, the plaintiff's title to the same fails. Judgment for defendant and for return. Peteks, C. J., Danforth, Libbey, Emery and Poster, JJ., con- curred. ^ SECTION II. In Equity. HOLROYD V. MARSHALL. In the House of Lords, June 14, 17, 18, 18G1, July 25, 1862. [Reporifd in 10 House of Lords Cases, 191.] James Taylor carried on the business of a damask manufacturer at Hayes Mill, Ovenden, near Halifax, in the county of York. In 1858 he became embarrassed, a sale of his effects by auction took place, and the Holroyds, who had previously employed him in the way of his busi- ness, purchased all the machinery at the mill. The machinery was not removed, and it was agreed that Taylor should buy it back for £5,000. 1 While the doctrine of potential existence as applied to the transfer of future crops is not Cenerallv discarded in this country, it is frequently subjected to limitations not to be found in the early English statements of the doctrine which are adopted to their full extent in Fetch V Tutin 15 M. & W. 110. But see Sale of Goods Act, § 5 (3). The American deci- sions are collected in Jones on Chattel Mortgages, §§ 141, 142 ; 8 Am. & Eng. Encyc. of Law, (2d ed.) 311 et seq. 12 HOLROYD V. MARSHALL. [CHAP. I. An indenture dated the 20th September, 1858, was executed, to which A. P. and W. Holroyd were parties of the first part, James Taylor of the second part, and Isaac Brunt of the third part. This indenture dechu-ed the " machinery, implements, and things specified in the schedule hereunder written and fixed in the said mill," to belong to the Holroyds ; that Taylor had agreed to purchase the same for £5,000, but could not then pay the purchase-money, wherefore it was agreed, etc., that " all the machinery, implements, and things specified in the schedule (hereinafter designated ' the said premises ') " were assigned to Brunt, in trust for Taylor, until a certain demand for payment should be made upon him, and then, in case he should pay to the Holroyds a sum of £5,000, with interest, for him absolutely. If default in pay- ment was made, Brunt was to have power to sell, and hold the moneys, in pursuance of the trust for sale, upon trust, to pay off the Holroyds, and to pay the surplus, if any, to Taylor. The indenture, in addition to a clause binding Taylor, during the continuance of the trust, to in- sure to the extent of £5,000 contained the following covenant : " That all machinery, implements, and things which, during the continuance of this security, shall be fixed or placed in or about the said mill, buildings, and appurtenances, in addition to or substitution for the said premises, or any part thereof, shall, during such continuance as afore- said, be subject to the trusts, powers, provisos, and declarations here- inbefore declared and expressed concerning the said premises ; and that the said James Taylor, his executors, etc., will at all times, during such continuance as aforesaid, at the request, etc., of the said Holroyds, their executors, etc., do all necessary acts for assuring such added or substituted machinery, implements, and things, so that the same may become vested accordingly." The deed was, four days afterwards, duly registered, as a bill of sale, under the 17 & 18 Vict. c. 36. Tay- lor, who remained in possession, sold and exchanged some of the old machinery, and introduced some new machinery, of which he rendered an account to the Holroyds before April, 1860 ; but no conveyance was made of this new machinery to them, nor was any act done by them, or on their behalf, to constitute a formal taking of possession of the added machinery. On the 2d April, 1800, the Holroyds served Taylor with a demand for payment of the £5,000 and interest, and no payment being made, they, on the 30th April, took possession of tlie machinery, and advertised it for sale by auction on the 21st May following. On the 13th April, 1860, Emil Preller sued out a writ of scire facias against Taylor for the sum of £155 18s. Ad., damages and costs, which was executed on the following day by James Davis, an officer of Mr. Garth Marshall, then high sheriff of York. On the lOth May, 1860, a similar writ, for £138 3s. 3d., was executed by Davis, and on the 25th May, 1860, the property was sold by the sheriff. Notice was given to the sheriff of the bill of sale executed in favor of the Holroyds. The only part of the machinery claimed by the execution creditors consisted of those things which had been purchased by Taylor since the date of SECT. II.] HOLROYD V. MARSHALL. 13 the bill of sale. The sheriff insisted on taking under the writs these added articles, and the Holroyds, on the 30th May, 1860, filed their bill against the sheriff, and the other necessary parties, praying for an assessment of damages and general relief. The cause was heard before Vice-Chancellor Stuart, who, on 27th July, 1860, made an order, declaring that the whole machinery in the mill, including the added and substituted articles, at the time of the execution, vested in the plaintiffs by virtue of the bill of sale. On appeal, before Lord Chancellor Campbell, on the 22d December, 1860, the Vice-Chancellor's order was reversed. This present appeal was then brought. Lord Chelmsford. My Lords, this case, which has become of great importance, has been twice fully and ably argued, there having been a difference of opinion amongst your Lordships upon the first argument, which made it desirable that a second should take place. Upon the original argument I thought that the decree of my late noble and learned friend. Lord Campbell, could not be maintained ; but I came to this conclusion with all the deference due to his great legal experience, and with the more doubt as to the soundness of my views, upon finding not only that he adhered to his opinion on hearing the question argued in this House, but that he was supported in it by my noble and learned friend, Lord Wensleydale, for whose judgment (it is unnecessary to say) I entertain tlie most sincere respect. Aware that I was opposed to such eminent authorities, I listened to the second argument with the most earnest and anxious attention ; but nothing which I heard in the course of it tended to shake the opinion which I had originally formed. I should, therefore, have been compelled to state this opinion under such discouraging circumstances, if I had not happily been fortified by the concurrence of the noble and learned lord upon the Woolsack, before whom the last argument took place. His great learning and long experience in courts of equity justify me now in expressing myself with some confidence in a case in wliich his views coincide with mine, and which is to be decided upon equitable grounds and principles. In considering the question, I propose to advert to the various points which were touched upon in the course of both the arguments, although upon the last occasion many were omitted which were raised upon the first. The question in the case is, whether the appellants, who have an equitable title as mortgagees of certain machinery fixed and placed in a mill, of which the mortgagor, James Taylor, was tenant, are enti- tled to the property which was seized by the sheriff, under two writs of execution issued against the mortgagor, in priority to those executions, or either of them. The title of the appellants depends upon a deed dated the 20t]i Sep- tember, 1858. [His Lordship here Stated the bill of sale and the other facts of the case ; see a7ite.] The machinery sold by the sheriff was ■ more than sufficient to satisfy tlie first execution, and the appellants, ■ claiming a preference over both executions, contend that the posses- 14 HOLROYD V. MARSHALL. [ciIAP. L siou tiikeu by thftm on the 30tli April entitled them, at all events, to priority over the second execution of the 11th May. The great ques- tion, however, is, whether they are entitled to a preference over the first execution by the mere effect of their deed ; or whether it was necessary that some act should have been done after the new machin- ery was fixed or placed in the mill, in order to complete the title of the appellants. It was admitted that the right of the judgment creditor, who has no specific lieu, but only a general security over his debtor's property, must be subject to all the equities whicli attach upon whatever prop- erty is taken under his execution. But it was said (and truly said) that those equities must be complete, and not inchoate or imperfect, or, in other words, that they must be actual equitable estates, and not mere executory rights. AVhat, then, was the nature of the title wliicli tlie mortgagees ob- tained under their mortgage deed? If the question had to be decided at law, there would be no difficulty. At law an assignment of a tiling which has no existence, actual or potential, at the time of the execu- tion of the deed, is altogether void. Robinson v. JNIacdonnell, 5 Maule & S. 228. But where future property is assigned, and after it comes into existence, possession is eitlier delivered by the assignor, or is allowed by him to be taken by the assignee, in either case there would be the noL-us actus interceniens of the maxim of Lord Bacon, upon which Lord Campbell rested his decree, and the property would pass. It seemed to be supposed upon tlie first argument that an assign- ment of this kind would not be void in law if the deed contained a license or power to seize the after-acquired property. But this circum- stance would make no difference in the case. The mere assignment is itself a sufficient cledaratio 2yrcecedens in the words of the maxim ; and altliougli Cliief-Justice Tiudal, in the case of Lunn y. Thornton, 1 C. B. 37'J, said, " It is not a question whether a deed miglit not have been so framed as to give the defendant a power of seizing the future personal goods," he must have meant that under such a power the assignee might liave taken possession, and so have done the act which was necessary to perfect his title at law. This will clearly appear from the case of Congreve v. Evetts, 10 Exch. 298, in which there was an assignment of growing crops and effects as a security for money lent, with a power for the assignee to seize and take possession of the crops and effects bargained and sold, and of all such crops and effects as might be sub- stituted for them ; and Baron Parke said, " If the authority given by the debtor by the bill of sale had not been executed, it would have been of no avail against the execution. It gave no legal title, nor even equitable title, to any specific goods ; but when executed not fully or entirely, but only to the extent of taking possession of the growing crops, it is the same in our judgment as if the debtor himself had put the plaintiff in actual i)ossession. of those crops." And in Hope V. Ilayley, 5 Ellis & B. 830, 845 (a case much relied upon by SECT. II.] HOLROYD V. MARSHALL. 15 the Vice-Chancellor), where there \vas.'s possession for a further time, at the expiration of which he promised to fetch it away and pay the price. This was assented to by the seller, and it was held that the seller could not recover on a count for horses bargained and sold, there having been no acceptance of the horse within the meaning of the Statute of Frauds. 28 TAELING V. BAXTER. [CHAP. II. Bayley, J. It is quite clear that the loss must fall upon him in whom the property was vested at the time when it was destroyed by fire. And the question is, in whom the property in this hay was vested at that time. By the note of the contract delivered to the plaintiff, the defendant agreed to sell the plaintiff a stack of hay standing in Canonbury Field, at the sum of £145, the same to be paid for on the fourth day of February next, and to be allowed to stand on the prem- ises until the first day of May next." Now this was a contract for an immediate, not a prospective, sale. Then the question is. In whom did the property vest by virtue of this contract? The right of property and the right of possession are distinct from each other ; the right of possession may be in one person, the' right of property in another. A vendor may have a qualified right to retain the goods unless payment is duly made, and yet the property in these goods may be in the ven- dee. The fact in this case, that the hay was not to be paid for until a future period, and that it was not to be cut until it was paid for, makes no difference, provided it was the intention of the parties that the vendee should, by the contract, immediately acquire a right of prop- erty in the goods, and the vendor a right of property in the price. The rule of law is, that where there is an immediate sale, and nothing re- mains to be done by the vendor as between him and the vendee, the property in the thing sold vests in the vendee, and then all the conse- quences resulting from the vesting of the property follow, one of which is, that if it be destroyed, the loss falls upon the vendee. The note of the buyer imports also an immediate, perfect, absolute agreement of sale. It seems to me tliat the true construction of the contract is, that I the parties intended an immediate sale, and if that be so, the property vested in the vendee, and the loss must fall upon him. The rule for entering a nonsuit must therefore be made absolute. HoLROYD, J. I think that in this case there was an immediate sale of the hay, accompanied with a stipulation on the part of the vendee, that he would not cut it till a given period. Now, in the case of a sale of goods, if nothing remains to be done on the part of the seller, as between him and the buyer before the thing purchased is to be deliv- ered, the property in the goods immediately passes to tlie buyer, and that in the price to the seller ; but if any act remains to be done on the part of the seller, then the property does not pass until that act has been done. I am of opinion, therefore, in this case, not only that the property immediately passed to the buyer by the contract, but that the seller thereby immediately acquired a right in the price stipulated to be paid for the goods, although that was not to be paid until a future day. The property having passed to the vendee, and having been accident- ally destroyed before the day of payment, the loss must fall upon him. LiTTLEDALE, J. The parties on the 4th of January stipulated for the sale and purchase of a stack of hay to be paid for in a month. Thus the case would have stood but for the note of the contract de- Uvered to the buyer, and in that there was a stipulation that the pur- SECT. I.] OLYPHANT V. BAKER. 29 chaser should not cut until the money was paid ; but the property in the hay had ah-eady passed by the contract of sale to the purchaser, and the latter afterwards merely waived his right to the immediate possession. Then the property having passed to the buyer, the loss must fall upon him ; and consequently this rule for entering a nonsuit must be made absolute.^ -R«^e absolute. OLYPHANT V. BAKER. Supreme Court of New Yore, May Term, 1848. [Reported in 5 Detiio, 379.] Motion to set aside the report of a referee. The action was assump- sit for the balance of the purchase price of a quantity of barley. Plea, noil assumpsit. A contract in writing, signed by the defendant only, was given in evidence by the plaintiff, as follows : — I hereby agree to sell seven hundred bushels of barley (or what I may have in store at Mr. P. Church, Jr.'s warehouse) to Abner Baker [the defendant], at the rate of forty-five cents per bushel ; to be deliv- ered when said Baker may call for it. I agree to hold the barley free of storage until the first day of January next. The barley is to be weighed out of the warehouse, unless Mr. Baker shall agree to tr.I-e the weight on the books. I hereby acknowledge the receipt of one hundred dollars on the above contract. Mount JNIouris, Dec. 15, 1815. The plaintiff owned the warehouse called P. Church, Jr.'s, in the contract, and before the contract was made had rented it to one Camp from and after the first day of January then next ; and of this he in- formed the defendant when the contract was made. On that day, or very soon afterwards, the defendant saw Camp, and agreed with him for the storage of the barley, for him, the defendant, from the first of January until the opening of navigation the ensuing spring. Camp took possession of the warehouse under his lease on the first day of January, tlie barley still remaining in it. After this arrangement with Camp and on the twenty-second day of December, the plaintiff's clerk called on the defendant with a bill of the barley and asked for pay- ment. The defendant paid him S300, and promised to pay the balance, 1 " Sir Cresswell Cresswell, in delivering an elaborate judgment of the Privy Coun- cil, in Gilinonr v. Supple, 11 Moo. P. 0. 5G6, says, ' Ry the law of P^nglaiid, by a con- tract for the sale of specific ascertained goods the property immediately vests in the buyer, and a riglit to the price in tlie seller, unless it can be shown that such was not the intention of tlie parties.' ' Various circumstances,' he adds, ' have been treated by our courts as sufficiently indicating sucli contrary intention.' I think this a very accu- rate statement of tlie law," — per Blackburn, J., Calcutta and Burmah Steam Naviga- tion Co, V. De Mattos, .■?2 L. J. Q. B. .?22, 328. See also a similar statement by the same judge in Sweeting v. Turner, L. R. 7 Q. B. 310, 313. 30 OLYPHANT V. BAKER. [CHAP. II. 895, the next day. The witness could not say that the bill men- tioned the number of bushels of the barley, but it contained the aggre- gate amount that it came to, and the witness did state to the defendant that there was a little over 1100 bushels of it. The exact quantity, he said, was a little over 1112 bushels. About the middle of January the building with the grain in it was accidentally destroyed by fire. The referee reported in favor of the defendant. E. P. Wisner and 0. Hastings, for the plaintiff, moved to set aside the report. U. D. Smith and E. Griffin, for the defendant. \ Whittlesey, J. The sole question here is whether there was a delivery of the barley to the defendant, who was the purchaser. In many cases of sales of personal property it is a very nice and difficult question to determine whether there has been a delivery — whether the title has passed. Tn this case the contract was executory. The quantity of barley was uncertain, and as it was sold by the bushel, the whole price could not be known until the quantity was ascertained. The seller was entitled to immediate payment ; at any rate he was entitled to payment before he parted with the property. The pur- chaser was entitled to the delivery whenever he chose to ask for it, but he could not claim to have it delivered without paying the price. L was entitled to have it weighed out to him, if he chose, for the purpose of ascertaining the exact quantity and aggregate amount of the pur- chase-money. He could, however, if he chose, take the weight as it appeared from the books. If he had taken such weight as the true quantity, and paid the whole price according to such weight, the barley would have been deemed to have been delivered from the time of such payment. Lansing v. Turner, 2 John. 13. But there was a sale by weight or measure at so much per bushel, and in such cases, as it is necessary that the thing sliould be weighed or measured before the price can be ascertained, the contract is not consummated so as to change the property until such weighing or measurement is had ; but it remains at the risk of the vendor. Pothier, Traite du Contrat de Vente, part 4, 308. In our reports it is held that when, after a sale of goods, some act remains to be done by the vendor before delivery, the property does not vest in the purchaser, but continues at the risk of the vendor. Such previous act may be counting, weighing, measuring, or inspecting, &c. M'Donald v. Hew- ett, 15 John. 349 ; Outwater v. Dodge, 7 Cowen, 85 ; Hanson v. Meyer, 6 East, 614 ; Rapelye v. Mackie, 6 Cowen, 250 ; Russell v. Nicoll, 3 Wend. 112 ; Ward v. Shaw, 7 id. 404 ; Downer v. Thompson, 2 Hill, 137. Even if there has been a delivery to the vendee, and any- thing remains to be done preparatory to ascertaining the price of the goods, the delivery does not divest the title of the vendor until the price be ascertained and paid. Andrew v. Dieterich, 14 AVend. 31. In this case it does not clearly appear that the precise quantity of the barley was ascertained and communicated to the defendant. The SECT. I.] OLYPHANT V. BAKER. 31 witness says, indeed, that thei-e were 1112 bushels and some pounds, and that he made out a bill and presented it to the defendant ; but he does not state that the precise quantity of the barley was put in such bill ; and on his cross-examination he states that he is not quite certain that he stated the precise amount of the barley in the bill, but he did state to him there was a little over 1100 bushels. The defendant took the bill, paid the greater part, and promised to pay the balance the next day. Is this evidence that the defendant agreed to take the weight as it appeared on the books? If it is to be so taken, as no objection was made to the weight in the bill, is it to be deemed that the plaintiff assented to parting with the property until the balance cf the purchase-money was paid? The plaintiff had a right to insist that the whole price should be paid before the property was delivered, and if the defendant had assumed to dispose of it before the payment of this balance, or had undertaken to remove it, and it should be found that he was insolvent, could not the plaintiff claim the property? The making of the bargain for the storage of the barley after the 1st of January was doubtless a strong circumstance, but was not of itself conclusive. There is a class of cases which determine that though something remains to be done to ascertain price, &c., yet if it clearly appears to be the intention of the parties that the property shall be deemed to be delivered and the title pass, it will be so held. Macom- ber V. Parker, 13 Pick. 178; Riddle v. Varnum, 20 id. 280. There does not appear to be anything in this case to show any different inten- tion of the parties than that which the law presumes from their acts. The case is not analogous to those above referred to. It is one of some nicety, but on the whole I think the motion to set aside the report of the referee should be denied. Beardsley, C. J. It is a general rule of the common law that a mere contract for the sale of goods, where nothing remains to be done by the seller before making delivery, transfers the right of property, although the price has not been paid, nor the thing sold delivered to the purchaser. Long on Sales, 42 ; Ross on Vend. & Pur. 1 ; 2 Kent, 492 ; Simons v. Swift, 5 B. & C. 857 ; Tarling v. Baxter, 6 id. 3G0. In this case the price per bushel for the barley was specified in the written contract, although the precise quantity sold was not then known to the parties ; that, according to the contract, was to be ascertained l)y weigliing the barley, unless the defendant should agree to take it as the weight might appear on the wareliouse books. When the contract of sale was made, it was impracticable to determine what amount, in the whole, was to be paid by the purchaser, for that would depend upon the quantity of barley sold, to be ascertained in one of the modes agreed upon ; it may therefore well be that this contract of sale did not, ijyso facto et eo instanti, transfer the right of property to the purchaser. The barley was not afterwards weighed by any one ; that mode of ascertaining the amount of the purchase-money may therefore be 82 OLYPHANT V. BAKER. [CHAP, 11. thrown out of view. Let us, however, see if it was not, in another way, completely adjusted between the parties. About a week after the coutract of sale had been entered into the plaintiff's clerk made out a bill of the barley sold to the defendant, stating the amount which it came to, although it does not appear that the precise quantity was mentioned. This bill was handed to the defendant and payment demanded. He paid three hundred dollars thereupon, and according to the evidence agreed to pay the balance, that is, ninety-five dollars, within a day or two. It is but reasonable to understand from the evidence on this point, although not stated in so many words, that the bill was made out from the warehouse books, and if so the defendant's engagement to pay the balance according to the bill, was an unequivocal agreement to abide by the weight of the barley as stated in said books. But even if the bill was not made out as I have supposed, but was a mere estimate of the quantity, the assent of the defendant to that estimate, as proved by the payment of three hundred dollars on the bill and his agreement to pay the balance as stated, would entirely supersede the necessity of ascertaining, in any other way, the weight of the barley sold and the consequent amount of the purchase-money. From this time, as the agreement for the sale was absolute, and the amount of the purchase-money had been fully adjusted between the parties, the right of property, as I think, clearly vested in the purchaser. Nothing then remained to be done by the seller before delivery was made ; and although he still had possession and a lieu for the purchase-money, the right of property was in the buyer, and with it the risk of all accidents devolved on him. See the authorities already referred to. This view, as it seems to me, would dispose of the case ; but there is another which leads to the same result, for the barley was in fact actu- ally delivered to and received by the defendant. When the written contract of sale was made, which was on tlie 15th of December, the barley was in the plaintiff's warehouse. The defend- ant was then informed by the plaintiff that he had rented the ware- house to one Camp, from the first day of January then next, and that the defendant must make an arrangement for the storage of the barley from that time with Camp. The evidence shows that on the day of making the contract of purchase, or within a day or two thereafter, the defendants agreed with Camp that the barley should remain in store with him until the next spring, for which the defendant was to pay a price then specified, and assented to by both parties. On the first of .January Camp went into possession of tlie warehouse under his lease from the plaintiff, and at the same time took charge of the barley for the defendant, as had been agreed between them. This gave to the defendant as full possession of the barley as he would have ac- quired by removing it to his own storehouse, and his right of property was previously complete by the purchase. Property, the right of pos- session, and the actual possession, were here united, and the plaintiff SECT. II.] HANSON V. MEYER. 33 had no longer any right whatever to the barley. His lien for the pur- chase-money was gone, as he had voidntarily transferred the possession of the barley to the defendant. The defendant's arrangement with Camp for the storage of the barley was made at the request of the plaintiff, and the transfer of the possession was with his full assent. It amounted to an unqualified relinquishment of all right on the part of the plaintiff, and a complete acquisition of both possession and prop- erty by the defendant. 2 Kent Com. 500, 502 ; Ross, 65-66, 72-73 ; Chaplin v. Rogers, 1 East, 192 ; Harman v. Anderson, 2 Camp. 243 ; Hurry v. Mangles, 1 id. 452 ; Hollingsworth v. Napier, 3 Caines, 182, 2d ed. and note at p. 184 ; Bentall v. Burn, 3 B. & C. 423 ; Carter v. Williams, 19 Pick. 1. The sale being completely executed, the pur- 1 chaser and owner, not the seller, should stand the loss. I think the I report of the referee should be set aside. McKissocK, J.,, concurred. Beport set aside. SECTION II. Sales of Specific Goods to which something remains to be done. HANSON AND Another, Assignees of Wallace and Hawes, Bankrupts, v. MEYER. In the King's Bench, July 2, 1805. [Reported in 6 East, 614.] This was an action of trover brought to recover the value of 33 cwt. 1 qr. 21 lbs. of starch, which was tried before Lord Ellenborough, e. J., at the sittings at Guildhall after Trinity term, 1803, when there was a verdict for the defendant ; and a motion being made for a new trial which was argued in last JVIichaelraas term, the court by consent }n Hilary term last ordered a case to be made of the facts that were proved at the trial, which are as follows : — The plaintiffs are assignees of J. Wallace and W. Hawes under a commission of bankrupt issued against them. Tlie defendant is a mer- chant in London. In January, 1801, the bankrupts employed Wright, tlieir broker, to purchase of the defendant a quantity of starch, about four tons, belonging to the defendant, and which was then lying in the Bull Porters' warehouse in Seething Lane ; and Wright accordingly purchased the starch of the defendant at £6 per cwt. and sent to the bankrupts, his principals, the following note : — Dear Sins, — I have bought that small parcel of starch which you saw of Mr. James IVIeyer for your account, £6 per cwt. by bill at 2 months ; 14 days for delivery from tlie 14th inst. Yours. &c.. T. Wright. January 15th, 1801. 84 HANSON" V. MEYER. [CHAP. II. The Starch lay at the Bull Porters'. The broker purchased for the banknii^ts all Meyer's starch that lay there, more or less, whatever it was, at £6 per himdred-weight ; it was in papers ; the weight was to be afterwards ascertained at the price aforesaid. The mode of delivery is as follows : the seller gives the buyer a note addressed to the ware- house-keeper, to weigh and deliver the goods to the buyer. This note is taken to the warehouse-keeper, and is his authority to weigh and deliver the goods to the vendee. The following note was given by the defendant : — To THE Bull Porters, Seething Lane, — Please to weigh and deliver to Messrs. Wallace and Hawes all my starch. Per James Meyer, William Elliott. January 17, 1801. This order was lodged by the bankrupts at the Bull Porters' ware- house on the 21st of January, 1801, on which day the bankrupts required the Bull Porters to weigh and deliver to them 540 papers of ^!le starch, which weighed — And on the 31st Jan. 250 And on the 2d Feb. 400 cwt. qr. lb. 21 1 6 9 1 20 15 1 4 46 12 1190 At which respective times the Bull Porters, in consequence of their order, weighed and delivered the same to the bankrupts, who immedi- ately removed the same ; the residue thereof, being 33 cwt. 1 qr. 21 lb. remained at the Bull Porters' warehouse till the failure of Wallace and Hawes. The above quantities of starch continued at the Bull Porters' warehouse in the name and at the expense of the defendant till they were weighed and delivered ; and the res'idue also afterwards continued there in like manner unweighed, in his name, and charged to his ex- pense. On the 8th of February, 1801, Wallace and Hawes became bankrupts. It was admitted that the defendant, after the bankruptcy, took away the remainder of the starch that had not been so weighed. The question for the opinion of the court was, whether the defendant was entitled to the above verdict. If the court should be of opinion that he was, then the verdict was to stand ; if not, then a new trial was to be granted upon such terms as the court should direct. JIumphreys, for the plaintiffs. Holroydy contra. Cur. adv. vuU. Lord Ellenborough, C. J., now delivered judgment. By the terms of the bargain formed by the broker of the bankrupts on their behalf, two things, in the nature of conditions or preliminary acts on their part, necessarily preceded the absolute vesting in them SECT. II.] HANSON V. MEYER. 35 of the property contracted for ; the first of them is one which does so according to the generally received rule of law in contracts of sale, viz., the payment of the agreed price or consideration for the sale, i The second, which is the act of weighing, does so in consequence of the particular terms of this contract, by which the price is made to depend upon the weight. The weight therefore must be ascertained in order that the price may be known and paid ; and unless the weigh- ing precede the delivery it can never, for these purposes, effectually take place at all. In this case a partial weighing and delivery of sev- eral quantities of the starch contracted for had taken place; the re maiiider of it was unweighed and undelivered ; and of course no such bill of two months for the price so depending on the weight could yet be given. The question is, What is the legal effect of such part deliv- ery of the starch on the right of property in the undelivered residue thereof ? On the part of the plaintiff's it is contended that a delivery of part of an entire quantity of goods contracted for is a virtual de- livery of the whole, so as to vest in the vendee the entire property in the whole ; although the price for the same should not have been paid. This proposition was denied on the part of the defendant ; and many authorities have been cited on both sides. But, without deciding at present what might be the legal effect of such part delivery in a case where the payment of price was the only act necessary to be per- formed in order to vest the property, in this case another act, it will be remembered, was necessary to precede both payment of price and delivery of the goods bargained for, viz., weighing. This preliminary act of weighing it certainly never was in the contemplation of the sellers to waive in respect of any part of the commodity contracted for. The order stated in the case from the defendant to the Bull Porters, his agents, is to weigh and deliver all his starch. Till it was weighed, they as his agents were not authorized to deliver it ; still less were the buyers themselves, or the present plaintiffs, their assignees, authorized to take it by their own act from the Bull Porters' warehouse ; and if they could not so take it, neither can they maintain this action of trover founded on such a supposed right to take, or, in other words, founded on such a supposed right of property in the subject-matter of this action. If anything remain to be done on the part of the seller as between him and the buyer, before the commodity purchased is to be delivered, a complete present right of property has not attached in the buyer ; and of course this action, which is accommodated to and depends upon such supposed perfect right of property, is not maintain- able. The action failing, therefore, on this ground, it is unnecessary to consider what would have been the effect of non-payment of price on the right to the undelivered residue of the starch, if the case had stood merely on that ground, as it did in -the case of Hammond and others against Anderson, 1 New Rep. 69 ; where the bacon sold in that case was sold for a certain fixed price, and where the weighing mentioned in that case was merely for the buyer's own satisfaction, and formed 36 RUGG V. MINETT. [CHAP. II. no ingredieut in the contract between him and the seller; though it formed a very important circumstance in the case, being an unequivo- cal act of possession and ownership as to the whole quantity sold on the part of the buyer ; in like manner as the taking 800 bushels of wheat out of the whole quantity sold, and then on board the ship, was holden to be in the case of Slubey v. Hey ward, 2 H. Bl. 504. AVitliout, therefore, touching the question which has been the main subject of argument in this case, and upon which my opinion at nisi 2)rii(s principally turned, and without in any degree questioning the authority of the above-mentioned two cases from the Common Fleas, this verdict may be sustained, on the ground that the weighing which was indispensably necessary to precede the deliver}' of the goods, inas- much as it was necessary to ascertain the price to be paid for them, had not been performed at the time when the action was brought. The verdict therefore must stand, and judgment be entered for the defendant. EUGG AND Others v. MINETT and Others. Ix THE King's Bench, May 9, 1809. [Reported in 11 East, 210.] In an action for money had and received by the defendants to the use of the plaintiffs, a verdict was found for the plaintiffs for £1415, subject to the opinion of the court upon the following case : — On the 28th of April, 1808, the defendants, as prize agents to the commissioners for the care and disposal of Danish property, put up to public sale by auction, at Dover, the cargo of a Danish ship in lots, and the lots No. 28 to 54 inclusive consisted of turpentine in casks. The quantity contained in each lot being marked on the catalogue thus, 10 cwt. 3 qrs. 26 lbs., the mode of bidding was this : each lot (except the two last, which were sold at uncertain quantities) was to be taken at the weight at which it was marked, and the bidding was to be at so much per hundred-weight on that quantity. The plaintiffs employed one Acres, the warehouseman of the defendants, to bid for them, and all the lots of turpentine (with the exception of three lots, which were sold to other bidders) were knocked down to Acres so acting for the plaintiffs. No conditions of sale were distributed prior to the sale ; but the auctioneer, before the bidding commenced, read aloud the fol- lowing conditions : 1st. The highest bidder to be the buyer ; but if any dispute should arise, the lot to be put up again. 2d. £25 per cent is to be paid to the auctioneer as a deposit immediately after the sale, and the remainder in thirty days. The remainder of the purchase-money is to be paid on the goods being delivered. Should the goods remain after the limited time, the warehouse rent from that time to be paid, at SECT. II.] RUGG V. MINETT. 37 the rate of 2s. per ton per month, by the purchaser. 3(1. The goods to be taken at the net weight printed in the catalogue. 4th. The goods to be taken away in twelve months, or resold to pay the warehouse rent. Upon failure of complying with these conditions, the deposit- money is to be forfeited, and the commissioners to be at liberty to resell any lots belonging to defaulters, by whom all charges attending the same shall be made good. Is. per lot under £10 ; Is. 6d. from £10 to £25 ; and 2s. above £25, — lot-money to be paid by the buyer to the auctioneer. Tare allowed for turpentine Is. 5d. Upon the turpentine being put up to sale, the auctioneer, by the direction of one of the de- fendants present, announced to the bidders that the casks of turpentine were to be filled up before they were delivered to the purchasers, and that in order to effect this, the two last lots would be sold at uncertain quantities, and the preceding lots would be filled from them. The whole of the turpentine, with the exception of the three lots before mentioned, were sold to the plaintiffs ; and they also were the pur- chasers of the two last lots, from which all the lots without exception were to be filled up ; and those two last lots were accordingly marked by the auctioneer in his catalogue, with the words " more or less." Im- mediately after the sale £200 was paid by the plaintiffs to the auctioneer as their deposit ; and on the 9th of May, 1808, the plaintiffs paid to the defendants £1715 upon account of the turpentine, and the duties paya- ble thereon. The turpentine remained in the warehouses of the defend- ants as before the sale, but was entered at the custom-house at Dover, in the name of the plaintiffs, on the morning of the 10th of May, 1808, before the fire, by Acres, who paid on behalf of the plaintiffs £450 as a deposit for the duties. On the same morning the cooper, who had been employed by the defendants to make up all the casks previous to the sale of the 28th of April, was sent for by Acres, who was warehouse- man to the defendants, and who acted as agent for the plaintiffs, to fill up the casks of turpentine, and he had filled all of them except eight or ten ; leaving them with the bungs out to enable the custom-house officer, who was expected every minute to take his gauge in order to ascertain the duties. The two last lots, which were sold at uncertain quantities, and marked " more or less," contained more turpentine than was suffi- cient to fill up all those bought by the plaintiffs, and also tliose bought by the buyers of the three lots. In filling the casks sold to the plain- tiffs one of the two last lots was used, and instead of the other of the two last lots, a preceding cask in point of number, which had been found to be an ullage cask, was substituted by the cooper, and from one of the two last lots, the lots sold to the other buyers had been pre- viously filled up. All the lots sold to the other buyers had been taken away before the cooper came on the 10th; and while the cooper was employed in filling up the plaintiffs' lots, and placing them ready with the bungs of the casks out for the custom-house officer to gauge, but before he had filled up all the casks, or bunged any of them, a fire took place in the defendants' warehouse, which consumed the whole of the ^ i*>'«n s->r>i'^N 38 EUGG V. MINETT. [CHAP, II. turpentine knocked down to the plaintiffs, — the casks not having been weighed again by the plaintiffs, or gauged by the custom-house officer. AVhile the money paid by tbe plaintiffs to the defendants on account of the turpentine remained in their hands, they received notice from the plaintiffs not to pay it over ; and the present verdict is composed of that sum, deducting the £450 paid on account of the duty, which has been restored to the plaintiffs by the commissioners of customs. The question for the opinion of the court was, whether the plaintiffs were teutitled to recover back the money so paid to the defendants. If they were, the verdict was to stand ; if not, a nonsuit was to be entered. Puller, for the plaintiffs. Carr, for the defendants. Lord Ellenborough, C. J. The court have already intimated their opinion as to those casks in the first lots which were filled up, and on which nothing remained to be done on the part of the sellers, but only the casks were left to remain for thirty days at the option of the pur- chasers in the warehouse at the charge of the sellers ; the payment of the warehouse rent, however, is not material in this case ; and when the casks were filled up everything was done which remained to be done by the sellers. It was necessary, however, that they should be gauged before they were removed, and the bungs were left out for the purpose of the ganger's doing his office, which it was the buyer's business to have performed ; and therefore, according to the case of Hanson v. Meyer, and the other cases, everything having been done by the sellers which lay upon them to perform, in order to put the goods in a deliv- erable state in the place from whence they were to be taken by the buyers, the goods remained there at the risk of the latter. But with respect to the other ten casks, as the filling them up according to the contract remained to be done by the sellers, the property did not pass to the buyers ; and therefore they are not bound to pay for them. Le Blanc, J. The case is to be considered as involving so many dis- tinct contracts as there were distinct lots bought by the plaintiffs. Tbs turpentine was purchased at so much per cwt., and it was to be taker according to the weight marked on each lot ; but the casks were to be filled up by the sellers out of turpentine belonging to them, in order to make the weights agree with the marks. I say- belonging to the sell- ers, because the two last casks were only sold according as their actual weights should turn out to be, after filling up the rest ; and if more turpentine had been wanted than those casks could have supplied for filling up the rest, it must have been settled which of the respective purchasers was to take less than his calculated quantity. Till the sev- eral casks therefore were filled up, I consider the property as remaining in the sellers. But a certain number of casks were filled up, and with respect to them nothing further remained to be done by the sellers But it was necessary that the custom-house officer should gauge them Defore they could be removed. Then the warehouseman who was act- SECT. II.] HAWES V. WATSON. 39 ing as the common agent of the buyers and sellers, having filled up those casks on the part of the sellers, left them unbunged for the pur- pose of the officer's gauging them and ascertaining the duties, which was an act to be done on the part of the buyers, to entitle them to remove the goods. Then, as nothing more remained to be done by the sellers on those cpsks which were filled up, they were from that time at the risk of the buyers ; but those which were not filled up continued at the risk of the sellers. Bayley, J. In many cases it happens, where every thing has been done by the sellers which they contracted to do, that the property passes to the buyers, though the goods may still continue in the actual possession of the sellers. It lies upon the plaintiff then to make out that something still remained to be done to the goods by the sellers at the time when the loss happened. But with respect to those casks which had been filled up, nothing remained to be done but the gauging by the oflficer ; and as that was to be procured to be done by the buyers, Acres, who left out the bungs for the purpose of enabling the officer to gauge, must be taken to have acted as the agent of the buyers for that purpose ; and therefore, nothing more remaining to be done by the sellers, the property passed. But with respect to the other casks, something did remain to be done by the sellers, namely, the filling them up ; and it is not sufl3cient for them to say that the}' were not called upon to do so by the buyers ; for if they meant to relieve them- selves from all further responsibility, they should have done what remained for them to do, and until that was done the property continued in them. Upon this it was agreed that the proportion to be allowed to the plaintiffs on the ten casks should be settled out of court ; and that the verdict should be entered accordingly. HAWES AND Another v. WATSON and Another. In the King's Bench, January 28, 1824. [Reported in 2 Bamewall ^- Cresswell, 540] Trover for a quantity of tallow. Plea, not guilty. At the trial before Abbott, C. J., at the London sittings after Michael- mas term, the following facts were proved for the plaintiffs. The plaintiffs on the 25th of September, 1823, purchased by contract, of Messrs. Moberly & Bell, 300 casks of tallow at 40s. per cwt. On the 27th of September, in part execution of their contract, IVloberly & Bell sent to the plaintiffs the following transfer note, signed by the defend- ants, who were wharfingers : — 40 IIAWES r. WATSON. [CHAP. 11. Messrs. J. & B. Hawes, — We have this day transferred to your account (by virtue of an order from Messrs. Moberly & Bell), 100 casks tallow, ex Matilda, with charges from October 10, 1823. H. & M. 100 casks. The plaintiffs then gave Moberly & Bell their acceptance for £2880 the price of the tallow, which was duly paid, and afterwards sold 21 casks of this tallow, which the defendants delivered, pursuant to their order. Moberly & Bell stopped payment on the 11th October, and on the 14th the defendants received notice from Raikes & Co., the original vendors of the tallow, not to deliver the remaining casks to Moberly & Bell, or their order ; and the defendants in consequence, refused to deliver the remainder of the tallow to the plaintiffs, upon their demanding the same. On the part of the defendants it was proved that Moberly & Bell, on the 26th September, had purchased of Raikes & Co. 100 casks of tallow (the same that were afterwards sold to the plaintiffs) landed out of the Matilda, lying at Wat- son's wharf, at £2 Is. per cwt. to be paid for in money, allowing 2| per cent discount, and fourteen days for delivery ; and on the same day Raikes & Co. gave a written order upon the defendants to weigh, deliver, transfer, or rehouse the tallow. Moberly & Bell had not paid for the same, nor had it been weighed subsequently to this order. Upon these facts it was contended at the trial, on the part of the defendants, that they were not bound to deliver to the plaintiffs the remaining seventy-nine casks of tallow, inasmuch as Raikes & Co. had, (as between them and Moberly & Bell, a right to stop them in transitu, the delivery to Moberly & Bell not being perfect, inasmuch as the tallow had not been weighed. The Lord Chief Justice, however, was of opinion that whatever the question might be as between buyer and seller, tlie defendants having, by their note of the 27th of September, acknowledged that they held the tallow on account of the plaintiffs, could not now dispute their title ; and the plaintiffs had a verdict. The Attorney-General now moved for a new trial, upon the ground taken at the trial. Hanson v. Meyer, 6 East, 614, is an authority to show that the absolute property in the tallow would not vest in Moberly & Bell, tlie first vendee, until it was weighed. The contract in that case was in terms similar to the contract made between the original vendors and Moberly & Bell. The weigliing must precede the delivery, in order that the price may be ascertained. In that case too, part of the goods had been weighed and delivered, yet it was held that the vendor might retain the remainder, which continued unweighed, in his possession; and Shepley v. Davis, 5 Taunt. 617, is also an authority to the same effect. Abbott, C. J. The plaintiffs in this case paid their money upon the faith of the transfer note, signed b}' the defendants, by wliich the\' acknowledged that they held the tallow as their agents. If we were now to hold that, notwithstanding that acknowledgment and that SECT. II.] HAWES V. WATSOX. 41 payment, the plaintiffs are not entitled to recover, we should enable the defendants to cause an innocent man to lose his money. To hold that the doctrine of stoppage m transitu applied to such a case as the present, would have the effect of putting an end to a very large por- tion of the commerce of the city of London. Batley, J. This appears to me very different from the ordinary case of vendor and vendee. In such cases justice requires that the vendee shall not have the goods unless he pays the price. If he can- not pay the price the vendor ought to have his goods back ; but if the question arises, not between the original vendor and the original ven- dee, but between the original vendor and a purchaser from the vendee, that purchaser having paid the full price for the goods, what is the honesty and justice and equity of the case? Surely, that the vendee who has paid the price, shall be entitled to the possession of the goods. I am of opinion that when Messrs. Raikes & Co. signed the order to transfer, weigh, and deliver, that, according to the settled course and usage of trade, enabled Moberly &, Bell to sell the goods again. There are many cases in which it has been held that if the first ven- dor does anything which can be considered as sanctioning the sale by his vendee, that destroys all right of the former to stop m transitiu Stoveld V. Hughes, 14 East, 308 ; Harman v. Anderson, 2 Campb. 243. HoLKOYD, J. I think that the note given by the defendants makes an end of the present question. AVhen that note was given, the tal- low became the property of the plaintiffs, and is to be considered from that time as kept by the defendants as the agents of the plaintiffs, and the latter were to be liable from the 10th October for all charges. This case is very different from that of Hanson v. Meyer. There, there was a sale of all the vendor's starch (the quantity not being t=^ ascertained) at £6 per cwt. The order was to weigh and deliver all the vendor's starch, and a part having been weighed and delivered, but not the residue, the main question before the court was, whether the weighing and delivery of part did or did not in point of law operate as a transfer of the property as to the whole. The court held, rightly, that it did not, because there tlie price of the whole which was to be paid for by bills could not be ascertained before it was weighed. The delivery of part, therefore, was not a delivery of the whole, but the order was complied with only as to the part which was weighed and delivered, and the property in the residue remained unchanged until something further was done. It was not a delivery of part for the whole, and therefore it did not operate in law as a delivery of the whole so as to devest the vendor of his right to stop in transitu; but here, the wharfingers, upon the receipt of the order directing them to weigh and deliver, sent an acknowledgment that they, the wharfingers, had transferred the goods to tlie vendees, and that they would be considered as subject to charges from a certain period. I think, there- fore, that the wharfinger then held the tallow as the goods of the plain- tiffs and as their agents, although there was not any actual weighing 42 SIMMONS V. SWIFT. [CHAP. II. of them ; and that the plaintiffs were then in possession by the defend- ants as their agents, they having acknowledged themselves as such by their note. For these reasons I am of opinion that the plaintiffs are entitled to recover. Best, J. I am also of opinion that the acknowledgment which has been given in evidence puts an end to all question in this case. . . . It appears to me, too, that if we consider the principle upon which the right of stoppage in transitu is founded, it cannot extend to such a case as the present. The vendee has the legal right to the goods the moment the contract is executed, but there still exists in the vendor an equitable right to stop them in transitu, which he may exercise at any time before the goods get actually into the possession of the ven- dee, provided the exercise of that right does not interfere with the rights of third persons. Now it appears to me impossible that it can be exercised in this case without disturbing the rights of third persons, for the property has not only been transferred to the purchaser in the books of the wharfingers, but there has been an acknowledgment by them that they hold it for the purchaser, who has paid the price of it. It has been said that there has been no change of property. If there has not, I do not see how there can be any until the tallow is actually) melted down and converted into candles. If the argument on the part of the defendants be valid, the vendor, if he is not fully paid, has a right, if the goods are not weighed, to stop in transitu, even though they have passed through the hands of a hundred different purchasers and been paid for by all except the first. It appears to me that we should disturb an established principle if we held that this could be done in such a case as the present. I think the right of stoppage in transitu is an equitable right, to be exercised by the vendor only when it can be done without disturbing the rights of third persons. Here, that can- not be done, and tlierefore I think that Raikes & Co. had not any right to stop in transitu, and that the plaintiffs are therefore entitled to recover. Hide discharged. HENRY SIMMONS v. HEZEKIAH SWIFT. In the King's Bench, Trinity Term, 1826. [Reported in 5 Barneivall ^' Cressivell, 857.] Indebitatus assumpsit for bark sold and delivered ; the usual money counts, and a count upon an account stated. At the trial before Little- dale, J., at the spring assizes for the county of Monmouth, 1826, the jury found a verdict for the plaintiff for the sum of £106 Bs. 8c?., sub- ject to the opinion of this court upon tlie following case : The plain- tiff and defendant were both dealers in timber and bark, the plaintiff residing at Whitebrook in Monmouthshire, and the defendant in the SECT. II.] SIMMONS V. SWIFT. 43 town of Monmouth. Previously to the 23d of October, 1824, the plaintiff was possessed of a quantity of oak hark, which was stacked at a place called Redbrook, on the banks of the river Wye, about two miles below the town of Monmouth, and wliich, in July preceding, weighed twenty tons. Upon the 23d of October, the following agree- ment for the sale of the said bark was signed by the plaintiff and the defendant : "I have this day sold the bark stacked at Redbrook, at £9 OS. per ton of twenty-one hundred-weight, to Hezekiah Swift, which he agrees to take, and pay for it on the 30th of November." It was afterwards verbally agreed between the parties that one William Simmons, a brother of the plaintiff, should see the bark weighed on behalf of the plaintiff, and one James Diggett should see it weighed on behalf of the defendant. Within five days after the signing of this agreement, the defendant sent several of his barges and his servants to Redbrook, and took a quantity of the bark, amounting to 8 tons 14 cwt. He sent for William Simmons who was at work in a wood near to Redbrook, to see the bark weighed on behalf of his brother, which William Simmons accordingly did, and was paid for his trouble by his brother's wife. AVilliam Simmons said he was not directed by his brother to see the bark weighed, and did not know that it had been sold until he was fetched from the wood by the defend- ant's messenger. James Diggett attended the weighing on the part of the defendant. The bark so taken by the defendant was carried by his barges down the river Wye to Chepstow. The remainder of the stack was covered with a tarpaulin belonging to the defendant, but which tarpaulin had been upon the premises at Redbrook, having been lent by the defendant for that purpose to the person who sold the bark to the plaintiff ; and had been used to cover a part of the stack before the signing of the agreement by the plaintiff and defendant. About eight or nine days after part of the bark had been so removed by the defendant, a Mr. James Madley, upon whose premises at Redbrook the bark was stacked, met the defendant, and asked him when he intended to take the remainder of the bark away, as it was stacked over part of a saw-pit which he, INIadley, wanted to use ; the defendant answered that he should have it taken away in a few days. The defendant did not at any time take away the remainder of the bark, nor was it weighed. Towards the latter end of November there was an .extraor- dinary flood, which overflowed the banks of the river Wye, and rose nearly to the height of five feet around the remainder of the stack of bark, and did it very considerable injury. There was sufficient time for the defendant to have removed the whole of the bark before the flood happened. The defendant was seen examining the remainder of the l)ark after it had been injured by the flood, and the tarpaulin before mentioned remained upon the bark until the 28th of January, 1825, when it was removed by some of the defendant's servants wlio were passing up the river in a barge. On the fourth day of Decemlier, 1824, the plaintiff called at the defendant's counting-house, and the defend- 44 SIMMONS V. SWIFT. [CHAP. II. ant said he was ready to pay for the bark which had been removed, viz., 8 tons 14 cwt., and by the plaintiff's direction an account was made out of the bark which the defendant had taken away as afore- said, and the defendant paid the amount by a check, which was duly honored. The plaintiff signed the account as settled, but at the same time said that no advantage should be taken of his so doing, and required the defendant to take and pay for the rest of the bark, which he refused to do. Bark is an article which varies very considerably in weiglit according as the air is moist or dry, and according to the sea- son of the year. The question at the trial was, whether the plaintiff was entitled to recover in this action for the bark which remained standing at Redbrook. According to the weight of the bark in July preceding, a quantity remained which, at the price mentioned in the agreement of 23d of October, 1824, amounted to the sum of .;^106 5s. Sd. , for which the verdict was taken. Oldnall Russell, for the plaintiff. Camjybell, contra. Bayley, J. Two questions are involved in this case : first, whether the property in the bark was vested in the defendant, so as to throw all risks upon him ; secondly, whether there had been such a delivery of the bark as would support this form of action. It is not, perhaps, ne- cessary to give any opinion upon the first point, but I think it right to do so, as it is most satisfactory to determine the case upon the main ground taken in argument. I think that the property did not vest in the defendant so as to make him liable to bear the loss which has occurred. Generally speaking, where a bargain is made for the purchase of goods, and nothing is said about payment or delivery, the property passes immediately, so as to cast upon the purchaser all future risk, if nothing further remains to be done to the goods ; although he cannot take them away without paying the price. If anything remains to be done on the part of the seller, until that is done the property is not changed. In Rugg V. Minett, 11 East, 210, and Wallace -y. Breeds, 13 Hast, 522, the thing which remained to be done was to vary the nature or quantity of the commodity before delivery ; that was to be done by the seller. In other cases the thiug sold was to be separated from a larger quantity of the same commodity. This case was different ; the subject-matter of the sale was clearly ascertained. The defendant agreed to buy the bark stacked at Redbrook, meaning of course all the bark stacked there ; but it was to be paid for at a certain price per ton. The bar- gain does not specify the mode in which the weight was to be ascer- tained, but it was necessary that it should be ascertained before the price could be calculated, and the concurrence of the seller in the act of weighing was necessary. He might insist upon keeping possession until the bark had been weighed. If he was anxious to get rid of the lia- bility to accidental loss, he might give notice to the buyer that he should at a certain time weigh the bark, but until that act was done it remained at his risk. In Hanson v. Meyer, 6 East, G14, weighing was the only SECT. II.] SIMMONS V. SWIFT. 45 thing that remained to be done ; there was not any express stipulation in the contract that the starch (the subject-matter of that contract) should be weighed ; that was introduced in the delivery order, but the nature of the contract made it necessary. So here the contract made weighing necessary, for without that the price could not be ascertained. Suppose the plaintiff had declared specially upon this contract, he must have alleged and proved that he sold the bark at a certain sum per ton, that it weighed so many tons, and that the price in the whole amounted to such a certain sum. The case of Hanson v. Meyer differs from this in one particular; viz., that the assignees of the vendee, who had become bankrupt, were seeking to recover the goods sold ; but the lan- guage of Lord Ellenborough as to the necessity of weighing in order to ascertain the price before the property could be changed is applica- ble to the present case, and decides it. I therefore think that the bark which remained uuweighed at the time of the loss was at the risk of the seller ; and even if the property had vested in the defendant, I should have thought that it had not been delivered, and consequently that the price could not be recovered on a count for goods sold and delivered. HoLKOYD, J. I also think that the plaintiff cannot recover. By a contract for the sale of specific goods, it is true, as a general position, that the property is changed, although the seller has a lien for the price, unless the contract is for a sale upon credit ; then the goods re- main at the risk of the buyer. But Hanson v. Meyer is a direct authority that in such cases as the present the seller does not part with the goods until the weighing has been accomplished. Secondly, I think that the bark was not delivered. If there was a delivery the seller could have no lien for the price, even if the contract did not make the bark deliverable until the oOth of November ; there was neither a per- formance Of the weighing nor an offer to perform it. LiTTLEiJALE, J. I eutcrtaiu some doubt whetlier the property did not pass by this contract ; and that doubt, as it seems to me, is not in- consistent with the decision in Hanson v. Meyer. The question there was, whether the assignees of the purchaser had a right to call for a delivery of the goods sold. Lord Ellenborough said payment of the price and the weighing of the goods necessarily preceded the absolute vesting of the property ; which expression I take to have been used with reference to the then question, viz., whether the property had so vested in the purchaser as to entitle his assignees to claim the deliv- ery. So in this case, altliough the property miglit vest in the pur- chaser, it would not follow that he could enforce a delivery until the weight of the bark had been ascertained and the price paid. Here there was not a delivery in fact, nor was the delivery of part a con- structive delivery of the whole. This differs from the cases of lien or stoppage in transitu, in which it may be considered that a delivery of part is in the nature of a waiver of the lien, or riglit to stop in tran- situ. 1 think further that an action for goods bargained and sold 46 SWANWICK V. SOTHERN. [CHAP. II. ■would uot lie merely because the property passed. The mere bargain would uot suffice, because no specific price was fixed ; nor could the plaintiff recover on a quantum valebat, for the contract was to pay by weight ; and therefore, until the commodity was weighed, there would be nothiug to guide the jury in the amount of damages to be giveu. The seller was at all events bound to offer to weigh the bark, but he never did so. For these reasons I think he cannot recover. Posted to the defendant. SWANWICK AND Another v. SOTHERN and Others. In the Queen's Bench, February 6, 1839. [Reported in 9 Adolphus ^- Ellis, 895.] Trover for 1028 bushels of oats. Pleas: 1. Not guilty; 2. Tha' the oats were not the property of the plaintiffs, in manner and form, &c. Issues thereon. On the trial before Patteson, J., at the Liverpool Spring Assizes, 1837, the material facts appeared to be as follows : The plaintiffs were corn dealers at Manchester ; the defendants carried on the business of wharfingers at the Duke's Quay, in the same town. The oats in question being in a warehouse of the defendants were sold by Turner & Co., the owners, to John Marsden, and the following de- livery order given, addressed to the warehouse-keeper : — Mr. AVm. Eaton, Duke's Quay : Deliver Mr. John Marsden 1028J-§ bushels oats, bin 40, 0. W., and you will please weigh them over and charge us the expense. Joseph Turner & Co. October .3d, 1836. The warehouse-keeper entered this order in his book, and on October 5th he received the following order from John Marsden : — Mr. Wm. Eaton, Duke's Quay : Deliver Messrs. Swanwick & Hall 1028^1 bushel oats, in bin 40, O. Warehouse ; and let them be weighed over and send a note up. I will Bee it paid. Fr. &, Jno. Marsden. Maxchester, 5th Oct., 1836. Swanwick and Hall, the plaintiffs, accepted a bill drawn by Marsden, October 7, 1836, for the value of the oats, which was duly honored. Eaton entered the order of October 5 in his book, and said to the party delivering it that all would be right, and he would attend to the order. The oats were transferred to the plaintiffs in the defendant's books, but without weighing over. There were no oats in bin 40 but the quantity SECT. II.] SWANWICK V. SOTHERN. -47 mentioned in the order. Eaton stated, at the trial, that from the 5th to the 12th of October the oats would have been delivered to the plain- tiffs if required. Marsden becoming insolvent, Turner, on October 12, gave the defendants notice not to part with the oats ; and on the 14th the defendants gave them up to Turner on an indemnity. At that time, and not before, they were weighed over, and they were found to be two bushels short of the weight mentioned in the orders. It was proved at the trial that the defendants did not consider themselves bound to weigh, and were not used to weigh, till delivery, when the grain was ■weighed to ascertain any loss of quantity. The question was, whether, without weighing, the property was sufficiently transferred to vest in the plaintiffs ; or whether, on October 14, Turner still had a right to stop in transitu. Patteson, J., thought that, on the above state of facts, the plaintiffs were entitled to recover, but he ga.ve leave to move for a nonsuit ; and the plaintiffs had a verdict. In Easter term, 1837, a rule 7iisi was obtained for a nonsuit or a new trial. In Hilary term, 1839, Cresswell and Tomllnson showed cause. Wightman and W. H. Watson^ contra. Cur. adv. vult. Lord Denman, C. J., now delivered the judgment of the court. The question in this case turns upon the construction of two delivery orders. [His Lordship then read the orders set out, p. 47, ante.] The oats were all that were in bin 40. They were transferred to the plaintiffs in the defendants' books, but never weighed over. The plain- tiffs had accepted a bill for the price, which they duly honored. On Marsden's failure, Messieurs Turner sought to stop them ; and the only question is, whether weighing over was in this case necessary in order to vest the property in the plaintiffs and defeat the stoppage in transitu. Neither of the contracts of sale was given in evidence. The cases on this subject establish the principle that wherever any thing remains to be done by the seller which is essential to the com- pletion of the contract, a symbolical delivery by transfer in the wharf- inger's books will not defeat the right of stoppage in transitu as be- tween buyer and seller. Hanson v. Meyer, G P^ast, G14, Shepley v. Davis, 5 Taunt. 617, Busk v. Davis, 2 M. & S. 397, abundantly show this. Therefore, if part of a bulk be sold, so that weighing or separa- tion is necessary to determine the identity or individuality (as Lord EUenborougli expresses it in Busk v. Davis, 2 M. & S. 397) of the article, or if the whole of a commodity be sold, but weighing is neces- sary to ascertain the price, because the quantity is unknown, the weighing or measuring must precede the delivery, and the symbolical delivery without such weighing will not be sufficient. I But where the identity of the goods and the quantity are known, the weighing can only be for the satisfaction of the buyer, as was held in Hammond v. Anderson, 1 New Rep. 69 ; and in such case the trans- fer in the book of the wharfinger is sufficient. We are of opinion that iS TUELEY V. BATES. [CHAP. II. the pres-^nt case is of the lalter description, and that this property passed as between buyer and seller. We have therefore no occasion to resort to the doctrine of estoppel, which is strongly enforced in Hawes V. AVatson, 2 B. & C. 540 ; but we do not mean, in so saying, to cast any doubt upon the authority of that case. Under these circumstances the rule for a nonsuit must be discharged. Hide discharged. TURLEY V. BATES. In the Exciikquer, June 6, 1863. .[Reported in 2 Hurlstone ^ Coltman, 200.] The declaration contained a special count, alleging that the plaintiff bargained and sold, and the defendant bought from the plaintiff, a quantity of fire-clay then deposited on certain land of the plaintiff, at the price of two shillings per ton, upon the terms that the defendant should take away the goods, and pay for the same within a reasonable time. It then, after averring that all conditions had been fulfilled to entitle the plaintiff to have the goods taken away and accepted by the defendant, and that the defendant took away and accepted a part of the goods under the contract, alleged as a breach that the defendant would not take away and accept the residue of the said goods, or pay for the same, whereby the plaintiff lost the price and profit he would have made. The declaration also contained counts for goods bargained and sold, goods sold and delivered, and on an account stated. The defendant, as to the first count, pleaded a denial of the buying and selling, and of the plaintiff's readiness to deliver and suffer the de- fendant to take away the residue. To the rest of the declaration he pleaded never indebted and a set-off. The cause was tried, before Channell, B., at the Middlesex sittings after last Easter term, when the following facts appeared, as stated in the judgment. The plaintiff was an iron and coal master at Cosely, in Staffordshire. In the year 1854, and between that and the year 1857, he excavated and raised from his collier}-, the Cosely Moore Colliery, a quantity of fire-clay. This clay was stacked in a heap on land of the plaintiff near to the bank of his colliery. Before December, ISGO, a portion of this heap had been sold and removed. In that month a quantity, estimated by the plaintiff at about 1,500 tons, still remained stacked in the heap. The defendant had before this time bought of the plaintiff, and carted and carried away, portions of the heap. On several occasions, in December, 1860, the plaintiff and defendant met, and a bargain was come to with respect to the clay. This bargain was on some points differently represented by the evidence for the plaintiff and by that of the defendant. SECT. II.] TUKLEY V. BATES. 49 According to the case for the plaintiff, the bargain concluded was fur the sale and purchase of the entire heap as then stacked, at the price of two shillings per ton, — the plaintiff being willing to take that price, in- stead of a higher one which he had demanded, provided the whole heap was taken away, so that the ground might be cleared ; that the defend- ant was, at his own expense, to load and cart it away ; and that the clay, when on its way to the defendant's premises, was to be weighed at a weighing machine belonging to one Johnson, which machine the de- fendant's carts would pass on their way ; and that the defendant was to pay for the weighing. It was not denied, on the part of the defendant, that a bargain was made to pay for such clay as he might take away at the rate of two shillings per ton, nor that such clay was to be carted and weighed at his own expense ; but it v/as contended by the defendant that the bargain was not for the whole heap as it stood, but only for such portion of the clay as the defendant chose to send for and cart away, and, after having it weighed at Johnson's machine, to pay for it at the rate aforesaid. No point was made on the Statute of Frauds, that the contract was not in writing : whether the verbal bargain was for the whole or for only a portion of the stack was the principal question in the cause. It was, however, further contended by the defendant that, whatever the quantity contracted to be bought, it was bought on a warranty by the plaintiff that the clay would stand a red heat. After the bargain the defendant at different times, as he thought fit, carted away portions of the clay, in the whole about 270 tons. On the three or foiar first occasions of carting away, the clay was weighed at Johnson's machine. On one occasion, the last, and without any notice to the plaintifl", clay was loaded by the defendant's servants and carted away in an opposite direction to the weighing machine, and such clay was taken to a canal, where it was loaded into a boat and taken.by water carriage to Liverpool. The plaintifT, whilst the defendant's men were carting this last clay, saw them and followed them, and the clay was gauged on the barge in the plaintiff's presence at twenty-two tons. Evidence was given, on the part of the defendant, that the clay which had been taken away by him had been used in his business, and did not answer the warranty alleged to have been given. On this ground also lie denied his liabiHty to take or pay for more than had been removed. This evidence became immaterial, as the learned judge ruled there was no evidence of a warranty. All the clay so taken away by the defendant had either been paid for before action brought or was covered by a set-off. The learned judge left to the jury the question what was the bargain ; and they found for the plaintiff, that the bargain was a bargain for the whole. It was then further objected' by the defendant, that, assuming that the verbal bargain was for the sale of the whole of the stack of clay, and further that there was no defence on the ground of warranty, yet, as the clay sought to be recovered for had never been weighed at John- 50 TURLEY V. BATES. [CHAP. II. son's machine, the count for goods bargained and sold could not be maintained ; and that, in the absence of any evidence of any fall in the value of cla}' or other loss by reason of not taking it away, the plaintiff could, at most, recover only nominal damages. No evidence of any actual loss or damage was given, and a verdict was then entered for the plaintiff, by consent, for the sum of £112 10s. 6d., as the estimated value of the cla}' not removed, at the contract price of two shillings per ton, — leave being reserved to the defendant to limit the verdict to the first count, and to nominal damages on that count in case this court should be of opinion that the plaintiff was only entitled to recover on that count. In last Easter terra a rule for a new trial, on the ground of misdirec- tion on the point of warrant}', was applied for and refused ; but a rule nisi was granted, pursuant to the leave reserved, to limit the verdict to the first count and reduce the damages to nominal damages ; against which Piffott, Serjt., and H. James showed cause in the present term (June 6). Overend and Quain, in suj^port of the rule. Cur. adv. vult. The judgment of the court was delivered, in the following Michaelmas vacation (December 6), b^^ Channell, B. This was an action tried before me at the Middlesex sittings, in last Easter term. (His Lordship then stated the pleadings, and proceeded.) At the trial a verdict was found for the plaintiff, dam- ages £112 \0s. &d.^ with leave reserved to the defendant to move to reduce the verdict to nominal damages on the ground hereinafter men- tioned. (His Lordship then stated the facts as above set forth.) This rule was argued before the Lord Chief Baron, my brother Bramwell, and myself. For the plaintiff it was contended that where full authorit}- was given to the buyer to remove the clay sold, and all that the seller had to do according to the contract was complete, and where everything that re- mained to be done was to be done b}' the buyer at his own expense ; viz., as, in this case, to cart away and have the clay weighed at his own expense, it must be taken as if there had been such a bargain and sale as to pass the propert}-, though the clay had not been removed and weighed, and that the contract price might be recoverable on the count for goods bargained and sold. For the defendant it was contended that, taking the case on the plain- tiff's evidence, and as found by the jurj-, that there had been a removal and weighing of part of the cla}', yet no propert}' passed in any cla\' until the clay had been weighed at Johnson's machine, and the quantity and price thus ascertained, so as to entitle the plaintiff to recover on the count for goods bargained and sold. In the course of the argument for the defendant we were referred to 4 SECT. II.] TUELEY V. BATES. 51 several cases decided in our courts, which were said to govern the ques- tion, and to a passage from my brother Blackburn's Treatise on Contract of Sale, part 2, ch. 2, p. 152. It was argued that the rule deducible from these authorities was, that so long as a price had been agreed upon according to quantit}', to be ascertained by weighing, that until the goods had been weighed, and the price so ascertained, the contract was incomplete ; which rule it was said was in accordance with the rule given in Pothier, Contr. de Ve7ite, with Kent's Commentaries, vol. 2, p. 496, New York edition, 1848, the Code Civil, liv. iii., tit. vi., cli. 1, art. 1585, 1586, 1587. The rule as stated in Blackburn on Contract of Sale, p. 152, is, " that where anything remains to be done to the goods for the purpose of ascer- taining the price, as by weighing, measuring, or testing the goods, where the price is to depend on the quantity or quality of the goods, the per- formance of these things, also, shall be a condition precedent to the transfer of the property, although the individual goods be ascertained, and they are in the state in which they ought to be accepted." After adverting to the rule as on§ wholly adopted from the civil law, the learned author (at page 153) says : '' In general, the weighing, &c., must from the nature of things be intended to be done before the buyer takes possession of the goods, but that is quite a different thing from intending it to be done before the vesting of the property ; and as it must in general be intended that both the parties shall concur in tlie act of weighing when the price is to depend on the weight, there seems little reason why, in cases where the specific goods are agreed upon it should be supposed to be the intention of the parties to render the delay of that act, in which the buyer is to concur, beneficial to him. Whilst the price remains unascertained, the sale is clearly not for a certain sum of money, and therefore does not come within the civilian's definition of a perfect sale, transferring the risk and gain of the thing sold ; but the English law does not i-equire that the consideration for a bargain and sale should be in moneys numbered, provided it be of value." The learned author, however, considered the rule he mentions to pre- vail hero, and to rest upon the authority of the English decided cases. Several cases are then cited in the treatise : Hanson v. Meyer, 6 East, 614 ; Hinde v. Whitehou.se, 7 East, 558 ; Rugg v. Minett, 11 East, 210 ; Zagury v. Furnell, 2 Campb. 240 ; Simmons v. Swift, 5 B. & C. 857 ; Laidler v. Burlinson, 2 M. & W. 602 ; Tripp v. Armitage, 4 M. & W. 687. The author further observes that " if it appear from the agreement that the intention of the parties is that the property shall pass presently, the property does pass, though there remain acts to be done by the ven- dor before the goods are deliverable ; " citing Woods v. Russell, 5 B. & A. 942 ; Clarke v. Spcnce, 4 A. «& E. 448. It is very doubtful whether in stating the rule to be that where any- thing remains to be done to the goods for ascertaining the price, as weighing, &c., the performance was a condition precedent to the transfer 52 TUKLEY V. BATES. [CHAP. II. cf the propert}^ it was meant hy the learned author to inckide a case where all that remained to be done was to be done by the buyer, with full authority from the seller to do the aet. In Hanson v. Meyer the weighing was to precede the deliver}', and was a condition precedent to the purchaser's right to take possession, and to a complete present right of property. In Hinde %i. Whitehouse, which was a case of a sale by auction, it was held that though the duties to the crown remained to be paid by the seller, before possession could be had by the buyer, the property passed from the time of sale ; the words of the condition showing that intention. In Rugg v. Minett, a duty remained to be performed by the sellers ; and Lord EUenborough stated the test to be, " whether everything had been done by the sellers which lay upon them to perform in order to put the goods in a deliver- able state ; " and Mr. Justice Bayley, in effect, adopted the same test. Zagury v. Furnell is an authority to the same effect. There it was the duty of the seller to count the skins in each bale, and the price was for a certain sum per dozen skins. In Simmons v. Swift, the authority most in point for the defendant, it was a. part of the contract there for the sale of a stack of bark at £9 per ton, that the bark should be weighed, and the concurrence of the seller in the act of weighing was necessary. Bayley, J., after stating the general principle says: " If anything re- mains to be done on the part of the seller, until that is done the property is not changed." P'rom a consideration of these cases, it appears that the principle in- volved in the rule above quoted is, that something remains to be done by the seller. It is, therefore, very doubtful, as before stated, whether the present case comes within the principle of the rule. But, however that may be, it is clear that this rule does not apply if the parties have made it sufficiently clear whether or not they intend that the property shall pass at once, and that their intention must be looked at in ever}' case. This is clearly laid down in the case of Logan u Le Mesurier, 6 Moo. P. C. C. 116, and in Hinde v. Whitehouse, 7 East, 558, cited supra, and in Blackburn on Contract of Sale, p. 151. In the present case the jury have, in effect, adopted tlie plaintiff's version of the bargain, by their finding that it was for the whole heap. And, taking that view of the case, it seems to us clear that the inten- tion of the parties was that the propert}- in the whole heap should pass, notwithstanding the cla}' was to be weighed at Johnson's machine ; and w-e, therefore, think that the rule to reduce the damages must be dis- charged. Eule discharged} ■ 1 Graff »;. Fitch, 58 111. 373; Hagins v. Combs 102 Ky. 165; ace; McFadden v. Hender- son, 128 Ala. 221; Ballantyne v. Appleton, 82 Me. 570; Pinkham v. Appleton, 82 Me. 574; Ward V. Shaw, 7 Wend. 40-1; Andrew v. Dioterich, 14 Wend. 31, contra. See also Hoffman V. Culver, 7 111. App. 450. SECT. II.] MARTINEAU V. KITCHING. 53 MARTINEAU v. KITCHING. In the Queen's Bench, May 3, 1872. [Reported in Law Reports, 7 Queen's Bench, 436.] The plaintiffs, sugar refiners, were in the habit of selling to brokers the -whole of each filling of sugar, consisting of from 200 to 300 loaves or 'Uitlers" each, the terras always being "Prompt at one month; goods ftt seller's risk for two months," the "prompt" day being the Saturday next after the expiration of one month from the sale. Tlie titlers in each filling were stored on the plaintiffs' premises, and were from time to time fetched away by the purchasers or their sub-vendees, being weighed on their removal, each titler weighing from thirty-eight to forty-two pounds. If the whole of the lots contained in one sale-note had not (which was frequently the case) been taken away on the " prompt" day payment was made by the purchaser (by bill or cash) at an approximate sum calculated on the probable weight, the actual price being afterwards adjusted on the whole filling being cleared. The defendant, who was an old customer of the plaintiff's, had bought four fillings, consisting of specific titlers, each marked, on the above terms, and had paid the approximate price of the four lots, and had fetched some of each lot away. A fire occurred on the plaintiffs' prem- ises after the expiration of the two months from the dates of sale to the defendant, destroying the whole contents of the warehouses. At the time of the fire the plaintiffs had floating policies of insurance which covered goods on the premises " sold and paid for, but not removed," but they had no agreement or understanding with their customers as to any insurance ; and the amount insured, which the plaintiffs received from the underwriters, was not sufficient to cover the loss of their own goods, exclusive of the titlers, undelivered, which they had sold to the defendant. CocKBURN, C. J. This is an action brought to recover the price of certain sugar alleged to have been sold by the plaintiffs to the defend- ant. The sugar perished by fire wliile it was still upon the premises of the sellers, and the defence raised is twofold : first, that the property. in the sugar had not passed from the plaintiffs, the sellers, to the de- fendant, the buyer, and consequently the loss must fall upon the sellers ; secondly, that, even &upposing that were decided against the defendant, inasmuch as these goods were covered by an insurance effected by the plaintiffs, and the plaintiffs had received the amount insured with respect to these goods, the defendant is entitled to have what the plaintiffs have so received in respect of the goods set off" in his favor against the price. The first question is, whether at the time these goods perished by fire they were the property of the sellers, the plaintiffs, or the property of the buyer, the defendant. In order to decide that, as well as to de- 54 MARTINEAU V. KITCHING. [ciIAr. II. cide the second question in dispute, we must look to see what was the course of dealing which existed between these parties, [The Lord Chief Justice stated the facts.] Now, that being the state of things existing between these parties, the first question is, whether, the contract between them being in con- formity with the general course of dealing to which I have adverted, •when these goods perished by fire the property had passed from the sellers to the buyer. In my opinion it had, both upon general prin-) ciples and more especially with reference to the particular facts of this case and the terras of the contract between the parties. In dealing with the case of a contract we must bear in mind that the seller en- gages to do two main things, first, to pass the property in the thing sold ; secondly, to deliver possession of it. The buyer engages to take the thing which he has contracted to bu}-, and to pay the price ; and, undoubtedly, in such a contract, one of the essential elements to con- stitute a contract of sale is that the price shall be agreed upon. But there is nothing, as it seems to me, to prevent the parties from agreeing that the property shall pass, and that the price shall afterwards be ascer- tained, that which is capable of being reduced to a certainty being for practical purposes a thing already certain or ascertained. Now the question here is, whether the property passed. It appears that the price had not been finally adjusted, but it is equally clear that the parties had agreed upon a price estimated between them as the sum to be taken provisionally as the price for the goods. The question which presents itself to my mind is v/hether, independently of the ques- tion how far, when the price is still to be ascertained on the sale of a specific chattel, the property passes, the parties having agreed that provisionall}' a given sum shall be taken as the price, that does not show a clear intention on the part of both buyer and seller that the property shall pass. It is very true, as has been ably contended by Mr. Brown, that there are authorities for saying that, where the price remains to be ascer- tained, the property will not pass. But I think it is equally clear, npon the authorities, that, according to the view now taken of this branch of I the law, the question is one of intention between the parties. I take it now to be perfectly clear, especialh' after the case of Turle}' v. Bates, 2 H. & C. 200, 33 L. J. (Ex.) 43, that the real question in all these cases is, whether the parties did intend that the property should pass ; and I take it that in this respect no fault can be found with the law of England if a distinction exists between our law and the civil law in this respect. It is perfectly true that where anything remains to be done with a view to the appropriation of the thing agreed to be sold by the seller to the buyer, it is plain that the property will not have been in- tended by him to pass to the buyer, and the property will not have passed. But it is equally clear that, in point of principle, and in point of com- mon-sense and practical wisdom, there is nothing to prevent a man from passing the property in the thing which he proposes to sell and SECT. II.] MAKTINEAU v. KITCHING. 55 the buyer proposes to bu}-, although the price may remain to be ascer- tained afterwards. We are dealing with the case of a specific chat- tel. 1 agree to sell to a man a specific thing — say a stack of hay, or a stack of corn. I agree to sell him that specific thing, and he agrees to buy it ; the price undoubtedly remains an element of the contract, but we agree, instead of fixing upon a precise sum, that the sum shall be ascertained by a subsequent measurement. What is there to pre- vent the parties from agreeing that the property shall pass from one to the other, although the price is afterwards to be ascertamed by measure- ment. I take it that is the broad substantial distinction. If, with a view to the appropriation of the thing, the measurement is to be made as well as the price ascertained, the passing of the property bemg a ques- tion of intention between the parties, it did not pass because the parties did not intend it to pass. But if you can gather from the whole circum- stances of the transaction that they intended that the property should pass, and the price should afterwards be ascertained, what is there in principle, what is there in common-sense or practical convenience which should prevent that intention from having effect? I protest I can see none , and unless there are authorities absolutely conclusive upon the point, I will not give way to a rule which appears to me to militate against principle, and to be inconsistent with common-sense and con- venience. In this particular case it is not necessary to say what would be the law applicable, if we had now to consider, for the first time, or as a court of error, which we are not, the question in the case of Simmons V. Swift, 5 B. & C. 857. But this case, 1 think, is plainly distinguish- able from Simmons v. Swift, by reason of more than one circum- stance. The first to which I shall advert is, that the price is agreed upon between the parties provisionally, according to their estimate of the quantity which the titlers contain. Can it be said that after that price has been paid at the prompt, although there is a further term in the contract between the parties that they shall eventually ascertain by an accurate weighing whether more or less than the price which the parties intended has been paid, — can it be said that it was intended after the price provisionally agreed upon has been paid at the prompt, that the property is still to remain in the sellers and not to be trans- ferred to the buyer ? I do not think it is possible to hold anything which would be so inconsistent with what is obviously the intention of the parties. All that they intended to do by the final weighing was to see whether they had accurately ascertained the amount which, accord- ing to the terms of the contract, they intended that the one party should pay and the other should receive. Then there is a further circumstance which appears to me of importance in this case, and which brings it clearly within the principle, as I think, of the case of Castle v. Playford, Law Rep. 7 Ex. 98, the recent case in the P^xchequcr Chamber, that is, that by the terms of this contract, the goods, while they remained in their possession — or in their custody is the more proper term — in their warehouse during the two months, were to be at the risk of the 56 MARTINEAU V. KITCHING. [CIIAP. II. sellers, the plaintiffs. As I pointed out in the course of the argument, what would be the necessity, what would be the object or purpose of such a stipulation that the goods should be at their risk during the two months if the property still remained in them? Of course it would tlion be at their risk. Moreover, according to the course of dealing between the parties, at the expiration of the two months, notice is given to the buyer, which notice the buyer accepts, and which notice the present defendant in his dealings with the plaintiffs had invariably accepted without remonstrance or objection, that upon the expiration of the two months the goods, though still remaining in the custody of the plaintiffs, siiould stand at the buyer's risk. That brings the case at once within the principle of the decision in Castle v. Playford, Law Rep. 7 Ex. 98, and shows that at that time, at all events, the property in the goods was intended by common consent of both bu3-er and sellers to be in the defendant, the buyer. I think, therefore, looking at all the circumstances of the case, it is impossible to doubt that the true intention of the parties, as well as by contemplation and effect of the law, was that the property was in the buyer and no longer in the sellers at the time of the fire, and therefore the thing, having perished, perishes to the dominus, namely, the buyer, ami not to the sellers, who had ceased to have anything to do with it. Blackburn, J. I am also of opinion that our judgment must be in favor of the plaintiffs. The case arises in this way. [The learned judge stated the facts.] The ditBculty which is raised is, that these goods liad perished before they were actually weighed ; and two points were made by Mr. Brown; he contended that because they had not been weighed the propert}' had not passed, and that it there- fore followed, as an inexorable rule of law, that they were not to be paid for, because they were still the property of the plaintifls. This, however, I do not think is the correct way of putting the case, and I do not think that we need decide wliether the property passed or not. As a general rule, res pet'it domino, the old civil law maxim, is a maxim of our law ; and when you can show that the propert}' passed the risk of the loss, prima facie, is in the person in whom the property IS. If, on the other hand, you go beyond that, and show that the risk attached to the one person or the other, it is a very strong argument for showing that the property was meant to be in him. But the two are not inseparable. It may be very well that the property shall be in the one and the risk in the other. In the present case I think all that is necessary to decide is, that the risk was not in the sellers. When the first montii had elapsed, and payment had been made, still the buy- ers had, from their express stipulation, a right to have the goods remain a month at the refiners' warehouse at the refiners' risk. Let us suppose that the refiners had become bankrupt. If in consequence of the risk being in the refiners, which by this stipulation it clearly would be during the two months, the property was still in the refiners, their assignees in bankruptcy would take the entire property, and the buyers, who had SECT. II.] MARTINEAU V. KITCHING. 57 paid the approximate price, would be obliged to come in and prove, and get so many shillings in the pound as they might be able to prove for. That would be a monstrous hardship, and in such a case as that I should be very much inclined to struggle very hard to find any legal reason for saying that, though the risk remained in the sellers, yet the property had passed to the buyers as soon as they had made the pay- ment. If the question arose in such a case as that, I am rather inclined to think it would be necessary to look carefully into Simmons v. Swift, 5 B. & C. 857, and some other cases, to see if one could decide that the property had passed. But in this case that does not arise ; the second of the two months had elapsed, during which the stipulation was that the goods were to be at the sellers' risk. I think expressio itiiius est excluslo alterlus. I cannot construe that stipulation, except as imply- ing that at the expiration of the two months the goods are to be at the buyer's risk. That construction would be greatly fortified, if it required fortification, by the fact that at the end of the two months the sellers did send a note to remind the buyer that the goods are at his risk ; and this being a stipulation between two parties, who are both sul juris, that they are to be at the buyer's risk after the two months, the question is, is that effectual at law? Mr. Brown's argument was, that tlie goods must be at the sellers' risk, because, as he contended, the property had not passed to the buyer. I have already intimated that, if it were necessary, I should consider very long before I said that. However, assume that it had not passed. If the agreement between the parties was, " I contract tliat when you pay the price I will deliver the goods to you, but the property shall not be yours, they shall still be my property so that I may have dominion over them ; but though they shall not be yours, I stipulate and agree that if I keep them beyond the month the risk shall be upon you ; " and then the goods perish ; to say that the buyer could then set up this defence and say, " Although I stipulated that the risk should be mine, yet, inasmuch as an accident has happened wliicli has destroyed them, I will have no part of that risk, but will throw it entirely upon you because the property did not pass to me," is a proposition which, stated in that way, appears to be absolutely a reductio ad ahsur- dum ; and that is really what the argument amounts to. If the parties have stipulated that, if after the two months the goods remain in the sellers' warehouse, they shall, nevertheless, remain there at the buyer's risk, it would be a manifest absurdity to say that he is not to pay for them ; and I think the case of Castle v. Playford, Law Rep. 7 Ex. 98, is a clear authority of the Court of Exchequer Chamber, that where the parties have stipulated that the risk shall be on one side, it mat- ters not whether the property had passed or not. The parties here have by their express stipulation impliedly said, after the two months the goods shall be at the risk of tlie buyer, consequently it is the buyer who must bear the loss. Then Mr. Brown said, " But how can the buyer pay when he was to 58 MARTINEAU V. KITCHING. [CHAP. IL pay at 47s. per cwt., and the goods have never been weighed, and tlierefore it would never be known with certain precision how man}' cwt. there were?" I answer to that, in the first place, that the point is concluded by the authority of Alexander v. Gardner, 1 Bing. N. C. G71 ; Turley v. Bates, 2 H. & C. 200, 33 L. J. (Ex.) 43 ; and the recent case of Castle v. Playford, Law Rep. 7 Ex. 98, in the Exchequer Cham- ber, — which all go to show that where the price is not ascertained, and it could not be ascertained with precision in consequence of the thing perishing, nevertheless the seller may recover the price, if the risk is clearly thrown on the purchaser, by ascertaining the amount, as nearly as 30U can. There is another reason which in this case would clearly appl}', — the delay in weighing is quite as much the fault of the purchaser as of the sellers. When the prompt day comes the sellers have a right to require that the goods should be weighed at once, so as to ascertain the price, and to have it paid to the last farthing. It ma}' be for the mutual con- venience of both parties ; but still it is the buyer, in effect, who requests that, as he is going to leave them longer, the weighing should be post- poned for a time. Therefore it is in consequence of his delay that the weighing does not take place. Now by the civil law it always was considered that, if there was any weighing, or anything of the sort which prevented the contract heing perfecta emptiOy whenever that was occasioned by one of the parties being in mord, and it was his default, though the emptio is not pe7'/ecta, yet if it is clearly shown that the party was in mord, he shall have the risk just as if the emptio was perfecta. That is perfectly good sense and justice, though it is not necessary to the decision of the present case, that, when the weighing is dela\-ed in consequence of the interference of the buyer, so that the propert}' did not pass, even if there were no express stipulation about risk, yet be- cause the non-completion of the bargain and sale, which would absolutely transfer the property, was owing to the dela}- of the purchaser, the pur- chaser should bear the risk just as much as if the property had passed. The inclination of my opinion is, as I have said, that the property is in the purchaser, but we need not decide that at all to-day, and it might require some consideration to see how far the case of Simmons v. Swift, 5 B. & C. 857, really governs the case. Judgment for the plaintiffs} 1 The statement of facts has been abbreviated, and portions of the opinions holding that the defendant was not entitled to the benefit of the insurance have been omitted. LcsH and Quain, JJ., delivered concurring opinions. The case came before the court on a case stated bv an arbitrator pursuant to an order of nisi prius. The court was to have power to draw inferences of fact, and to make any amendments in the pleadings which it might think necessarj' or proper. See further in regard to the transfer of risk, irrespective of transfer of title, Inglis v. Stock, 10 A. C. 263. SECT. II.] SHERWIN V. MUDGE. 59 SHERWIN V. MUDGE. Supreme Judicial Court of Massachusetts, March 14, 1878 — Oct. 24, 1879. [Reported in 127 Massachusetts, 547.] Contract by the collector of the city of Boston against the admin- istratrix of the estate of Andrew C. Mudge, deceased, for the amount of a tax assessed on May 1, 1875, on a stock of merchandise. The case was submitted to the Superior Court, and, after judgment for the defendant, to this court on appeal, on an agreed statement of facts, in substance as follows : — By the terras of a written agreement entered into before May 1, A. "sells" and B. " buys" the stock of goods in A.'s shop; the price to be a certain percentage of the invoice price of the goods, according to an inventory in the possession of A., " subject to corrections as to quantities ; delivery to be made and price paid as soon as the quan- tities can be verified." The agreement also stated the price according to the inventory, and the amount to be paid, " subject as above." As soon as the agreement was signed B. paid A. a certain sura. An exaraination was then made by B. to verify the inventory, which was not finished until after May 1, when the goods were delivered and the balance found due paid. H. W. Putnam, for the plaintiff. J. II. Young, for the defendant. Gray, C. J. By a contract for the sale of specific goods, the title doubtless passes as between the parties, without any actual or con- structive delivery, or payment of the price, unless it can be shown that their intention is different. Tarling v. Baxter, 6 B. & C. 360 ; s. c. 9 D. & R. 272 ; Dixon v. Yates, 5 B. & Ad. 313, 340 ; s. c. 2 Nev. & Man. 177, 202 ; Gilmour v. Supple, 11 Moore P. C. 551 ; Parsons V. Dickinson, 11 Pick. 352, 354 ; Pratt v. Parknian, 24 Pick. 42, 46 ; Morse v. Sherman, 106 Mass. 430 ; Dempsey v. Gardner, anle, 381. But in the present case the terms of the written contract manifest the intention of the parties that the title shall not pass immediately. The implication of an immediate transfer of title, suggested by the use, at the outset, of the words in the present tense, by which the defendant " sells," and Jordan, Marsh, & Co. " buy," an entire stock of goods in a particular shop, is controlled by tlie subsequent pro-l visions. The contract not only requires a comparison of the actual quantities of the goods with the inventory in the possession of the defendant, in order to fix the price; but the stipulation "delivery to be made and price paid as soon as the quantities can be verified" shows that the parties contemplated and intended that the transfer of the title and the payment of the price should be simultaneous, and that both should be postponed until the quantities of the goods were 60 LINGIIAM V. EGGLESTON. [CHAP. II. verified and the amount of the purchase money thereby ascertained. Higgius /'. Chessman, 'J Pick. 7, 10; Dresser Manuf. Co. v. Waters- ton, 3 Met. 9, 17; Macomber v. Parlier, 13 Pick. 175; Mason v. Thompson, 18 Pick. 305; Riddle v. Varnum, 20 Pick. 280; Foster V. Ropes, 111 Mass. 10, 16. The defendant, therefore, was the owner of the goods on the first of May, and is liable for the tax assessed thereon. Judgment for the plaintiff.^ . LINGHAM V. EGGLESTON. Supreme Court of Michigan, April 17, 18 — July 11, 1873. [Reported in 27 Michigan, 324.] CoOLEY, J. The contest in this case relates to a sale of lumber by Eggleston to Lingham and Osborne, and the question involved is, whether the contract between the parties amounted to a sale in jire- senti and passed the title, or merely to an executory contract of sale. The lumber, subsequent to the contract and before actual delivery to the purchasers, was accidentally destroyed by fire, and the purchasers now refuse to pay for it on the ground that it never became their property. The action was brought by Eggleston for goods bargained and sold, and in the court below he recovered judgment. There appears to be very little dispute about the facts. The lum- ber was piled in P^ggleston's mill yard at Birch Run. In September, 1871, he sold his mill to a Mr. Thayer, reserving the right to leave the lumber in the yard until he disposed of it. To most of the lumber the plaintiff had an exclusive title ; but there were four or five piles which he owned jointly with one Robinson. The whole amount was from 200,000 to 250,000, excluding Robinson's share in the four or five piles. The defendants went to the mill yard September 23, 1871, and proposed to buy the lumber. Plaintiff went through the yard M'ith them, pointed out the several piles, and designated those in which Robinson had an undivided interest, and also some piles of shingles which they proposed to take with the lumber. After examining the whole to their satisfaction, the defendants agreed upon a purchase, and the following written contract was entered into : — Flint, September 23, 1871. Lingham and Osborne bought from C. Eggleston this day, all the pine lumber on his yard at Birch Run at the following prices : For all common, eleven dollars, and to include all better at the same price ; and for all culls, five dollars and fifty cents per M., to be paid for as follows: five hundred dollars to-day, and five hundred dollars on the 10th of October next ; the balance, one 'lalf on 1st day of January, a. u. 1872, and the rest on the 1st day 1 The statement of the case has been abbreviated. SECT. II.] LINGHAM V. EGGLESTON. 61 of February following; said lumber to be delivered by said Eggleston on board of ears wlieu requested by said Lingham and Osborne, which shall not be later than 10th of November next. Also some shingles at two dollars per M. for No. 2, and four dollars for No. 1. (Signed) Lingham & Osborne. Chauncey Eggleston, Jr. The five hundred dollars mentioned in this contract to be paid at the time of its execution was paid. A few days later defendants went to the mill yard in plaintiff's absence and loaded two cars with the lumber. He returned before they had taken them away, and helped them count the pieces on the cars, but left them to measure them afterwards. At this time tlie lumber in the piles had not been assorted, inspected, or measured. There was disagreement between the parties as to whether they had fixed upon a person to inspect the lumber, — the defendants claiming that such was the fact. On the 9th day of October, 1871, Lingham met plaintiff on the cars at Flint, and told him the fires were raging near Birch Run ; that tlie luml)er yard was safe yet, but that there were eight cars standing on the side track, and he had better go up to Birch Eun and load what were there, and get what lumber he could away ; plaintiff took the first train for the purpose, and while on the train the train boy gave him the following note from Lingham : — Holly. Mr. Eggleston: You may load, say ten thousand, if you think best, on each ear, and we can have it inspected as it is unloaded. I will try and come up to-morrow. "When plaintiff reached Birch Run the fire was raging all about the mill, and that, with all the lumber in the yard, was soon totally destroyed by fire. Such are the undisputed facts in the case ; and upon these the jury were instructed in substance that a completed contract of sale was made out, and tlie plaintiff was entitled to recover the purchase price. Where no question arises under the statute of frauds, and the rights of creditors do not intervene, the question whether a sale is com- pleted or only executory, must usually be determined upon the intent of the parties to be ascertained from their contract, the situation of the thing sold, and the circumstances surrounding the sale. The parties may settle this by the express words of their contract, but if they fail to do so we must determine from their acts whether the sale is complete. If the goods sold are sufficiently designated so that no question can arise as to the thing intended, it is not absolutely essen- tial that there should be a delivery, or that the goods should be in deliverable condition, or tliat the quantity or quality, when the price depends upon either or both, should be determined. < All these arc circumstances having an important beai'ing when we are seeking to arrive at the intention of the parties, but no one of them, nor all com- bined, are conclusive. In Blackburn on Sales, 120, the rule on this subject is very clearly U- 62 LINGHAM V. EGGLESTON. [CIIAP. II. aud correctly stated as follows: The Question, the author says, is " a question depending upon the construction of the agreement ; for the law professes to carry into effect the intention of the parties as appearing from the agreement, and to transfer the property when such is the intention of the agreement ; not before. In this, as in other cases, the parties are apt to express their intentions obscurely ; very often because the circumstances rendering the point of impor- tance ai-e not present to their minds, so that they really had no intention to express. The consequence is, that without absolutely losing sight of the fundamental point to be ascertained, the courts have adopted certain rules of construction which, in their nature, are more or less technical. Some of them seem very well fitted to aid the court in discovering the intention of the parties ; the substantial sense of others may be questioned. The parties do not contemplate a bargain and sale till the specific goods on which their contract is to attach are agreed upon. Where the goods are ascertained, the parties are taken to contemplate an immediate bargain and sale of the goods, unless there be something to indicate an intention to postpone the transference of the property till the fulfilment of any conditions ; and when by the agreement the seller is to do anything to the goods for the purpose of putting them into a deliverable shape, or when anything is to be done to them to ascertain the price, it is presumed that the parties mean to make the performance of those things a condition precedent to the transfer of the property. But as these are only rules for the construction of the agreement, they must yield to anything in the agreement which clearly shows a contrary intention. The parties may lawfully agree to an immediate transference of the property in the goods, although the seller is to do many things to them before they are to be delivered ; and, on the other hand, they may agree to post- pone the vesting of the property till after the fulfilment of any conditions they please." In Benjamin on Sales, 214, 215, the same doctrine is laid down, and it is said that " nothing prevents the par- ties from agreeing that the property in a specific thing sold and ready for delivery is not to pass till certain conditions are accomplished, or that the property shall pass in a thing which remains in the vendor's possession, and is not ready for delivery, as an unfinished ship, or which has not yet been weighed or measured, as a cargo of corn in bulk, sold at a certain price per pound or per bushel." And see ib., 221 et seq. Upon this general principle there is no diflQculty in reconciling most of the reported decisions. And even without express words to that effect, a contract has often been held to be a completed sale, where many circumstsHnces were wanting and many things to be done by one or both the parties to fix conclusively the sum to be paid or to deter- mine some other fact material to their respective rights. The most important fact indicative of an intent that title shall pass \B generally tiiAt of delivery. If the goods be completely delivered to SECT. ;i.] LINGHAM V. EGGLESTON. 63 the purchaser, it is usually very strong if not conclusive evidence of intent that the property shall vest in him and be at his risk, notwith- standing weighing, measuring, inspection, or some other act is to be done afterwards. A striking case in illustration is that of Young v. Mathews, Law K., 2 Exch. 127, where a large quantity of bricks was purchased in kilns. Only a part of them were burned, and none of them were counted out from the rest ; but they were paid for, and such delivery as in the nature of the case was practicable was made. The court held that the question was one of intention merely, and that it was evident the parties intended the title to pass. To the same effect are Woods v. Russell, 5 B. & Aid. 942 ; Riddle v. Varnum, 20 Pick. 280 ; Bates v. Conklin, 10 Wend. ^89 ; Olyphant v. Baker, 5 Denio, 379 ; Bogy v. Rhodes, 4 Greene (Iowa), 133 ; Crofoot v. Bennett, 2 N. Y. 258 ; Cunningham v. Ashbrook, 20 Mo. 553. So, if the goods are specified, and all that was to be done by the vendor in respect thereto has been done, the title may pass, though the quantity and quality, and consequently the price to be paid, are still to be determined by the vendee. Turley v. Bates, 2 H. & C. 200 ; Kohl v. Lindley, 39 111. 195. And even if something is to be done by the vendor, but only when directed by the vendee, and for his convenience, as, for instance, to load the goods upon a vessel for transportation, the property may pass by the contract of sale notwithstanding. Whitcomb v. Whitney, 24 Mich. 486 ; Terry v. Wheeler, 25 N. Y. 520. But the authorities are too numerous and too uniform to justify citation, which hold that where anything is to be done by the vendor, or by the mutual concurrence of both parties, for the purpose of ascertaining the price of the goods, as by weighing, testing, or meas- uring them, where the price is to depend upon the quantity or quality of the goods, the performance of those things is to be deemed pre- sumptively a condition precedent to the transfer of the property, although the individual goods be ascertained, and they are in the state in which they may and ought to be accepted. A learned author from whom we have already quoted, says of this, that " the rule seems to be somewhat hastily adopted from the civil law, without adverting to the great distinction made by the civilians between a sale for a certain price in money, and an exchange for any- thing else. The English law makes no such distinction, but, as it seems, has adopted the rule of the civil law, which seems to have no foundation except in the distinction. In general the weighing, &c., must, in the nature of things, be intended to be done before the buyer takes possession of the goods ; but that is quite a different thing from intendhig it to be done before the vesting of the property ; and as it must in general be intended that both the parties shall concur in the act of weighing, when the price is to depend upon the weight, there 6eems little reason why, in cases in which the .specific goods are agreed upon, it should be supposed to be the intention of the parties 64 LINGHAM V. EGGLESTON. [CHAP. II. to render the delay of that act, in which the buyer is to concur, bene- ficial to him. AVhilst the price remains unascertained, the sale is clearly not for a certain sum of money, and therefore does not come -vvithin the civilian's definition of a perfect sale, transferring the risk and gain of the thing sold ; but the P^nglish law does not require that the consideration for a bargain and sale should be in moneys num- bered, provided they be of value." But the same writer, with candor and justice, adds that this rule is now " Grmly established as English law." Blackburn on Sales, 153. And see Turley v. Bates, 2 H. & C. 200, in which this passage is quoted and the conclusion treated as unquestionable. What, then, are the f§iets in this case from which the intent of the parties is to be inferred ? The lumber was specifically designated, so that no question of identity could arise. It was not delivered, and the vendor was to place it on board the cars, if desired to do so within a time specified ; but as in any event the vendees were to take it at Birch Run, and it was optional with them to load it on the cars themselves or to have the vendor do it for them, and they had no right to require that he should do so after the day named, we think the circumstance that actual delivery was not made is not one of very much importance in the present discussion. What is of more importance is, that neither the quality nor the quantity was determined ; and the evidence in the case shows that as to these there might very well be, and actually were, great differences of opinion. The price to be paid was conse- quently not ascertained, and could not be until the qualities were separated and measurement had. It will be observed that the contract did not provide how or by •whom the inspection and measurement should be made. It was cer- tamly not the right of either party to bind the other party by an inspection and measurement of his own ; it was the right of both to participate, and we must suppose such was the intent, unless some- thing clearly appears in the case to show the contrary. Nothing of that nature appears in the record except the disputed evidence of defendants, that a person was agreed upon for the purpose. The note sent by Lingham to Eggleston, proposing that the eight cars be loaded and that the vendees make the proper inspection, was a mere proposition, and never acted upon. It is very evident Eggleston was under no obligation to trust this important transaction exclusively to the vendees, and we have no right to infer that he would have done so. It follows that something of high importance remained to be done by the vendor to ascertain the price to be paid ; and as this, under all the authorities, was presumptively a condition precedent to the transference of the title, — nothing to the contrary appearing, — the court should have so instructed the jury. The instructions given were in substance directly to the contrary. It follows that .the judgment must be reversed, with eosts^ and a new trial ordered. The other justices concurred. SECT. II.] ALLEN V. ELMORE. 65 J. C. ALLEN V. MIKE ELMOEE, Appellant. Supreme Court of Iowa, October 13, 1903. [Reported in 121 Iowa, 241.] McClain, J. At an auction sale of plaintiff's stock and farm pro- duce certain hay in a mow was offered, with an announcement that it would be sold in five-ton lots, with the privilege to the successful bidder for any lot of taking a larger quantity at the same price, if he should see fit. Under this arrangement defendant was the successful bidder for the first lot, and announced his election to take all of the hay offered at the same price. Some question was raised as to how the quantity should be ascertained, and it was agreed that it might be weighed, as taken away, on a neighbor's scales, and, further, that the buyer might allow it to remain in plaintiff's mow until the same was needed for the storing of the next crop. The buyer paid a portion of the purchase price in cash, and by the terms of the sale he was to have time for payment of the balance. Before any of the hay was removed it was destroyed by accidental tire, without any fault on the part of plaintiff. Under these facts, the simple question was whether the title to the hay had passed, so that the defendant as purchaser became liable for the price. The only objection made by counsel for appellant with reference to his liability is based on the fact that the quantity of hay had not been ascertained at the time of its destruction, and that weighing was still necessary to determine the purchase price to be paid. It is true that, so long as anything remains to be done between the parties to ascer- tain and identify the particular property which is to pass, the sale is not complete. McClung v. Kelley, 21 Iowa, 508 ; Snyder v. Tibbals, 32 Iowa, 447 ; Welch v. Spies, 103 Iowa, 389. But, as explained in Welch V. Spies, suj^ra, which discusses the earlier Iowa cases on the subject, if the property has been identified so that the transaction re- lates to a specific and ascertained chattel, then the question is one of intent, and the fact that something remains to be done by the buyer, such as weighing or measuring, for tlie purpose of determining the price to be paid, does not prevent the transaction being a completed sale, under which the title passes to the buyer, accompanied with the risk of the loss or destruction of the property without the seller's fault. The rule supposed to have been recognized in some of the earlier Eng- lish cases, to the effect that there could be no passing of title until the purchase price had been definitely determined by weighing or measur- ing, when necessary, base^, as it wks, apparently on the jdea that the action for the purchase price must be for a specific sum, definitely ascertained, has not been generally approved by the courts in this country, and it has been held by the great weight of authority that t- GC) ALLEN V. ELMORE. [CHAP. IL Kheve the payment of the purchase price is not a condition to the passing of title — that is, where credit for the price is given — the fact that weighing or measuring still remains necessary to determine the price will not indicate an intention that the title shall not pass until such acts are done ; it being assumed, of course, for the purpose of applying this rule, that the specific goods are definitely ascertained and agreed upon. Riddle v. Varnum, 20 Pick. 280 ; Crofoot v. Bennett, 2 oST. Y. 258 ; Cunningham v. Ashbrook, 20 Mo. 553 ; Upson v. Holmes, 51 Conn. 500 ; Sanger v. Waterbury, 116 N. Y. 371 (22 N. E. Eep. 404) ; Adams Mining Co. v. Senter, 26 Mich. 73 ; Ober v. Carson's Ex- ecutor, 62 Mo. 209 ; Haxall v. Willis, 15 Grat. 434 ; Sedgwick v. Cot- tingham, 54 Iowa, 512. And, whatever may have been the earlier views of the English judges, that is now the rule in England. Mar- tineau v. Kitching, L. E. 7 Q. B. 436. This is the view stated by the American text-books. See Mechem on Sales, sections 519-524 ; Bur- dick on Sales, page 55. Even if, as is stated in some cases, the question is one of intent, for the jury, we have in this case the conclusion of the trial court, entitled to the same weight as the verdict of a jury, that such was the intent, xnd the finding is amply supported by the evidence. It is perfectly clear from the record that the hay was allowed to remain in the plain- tiff's mow for the convenience of the defendant ; that the defendant had the right to take it away whenever he saw fit ; that he might, under the terms of the contract, have taken it away before its destruc- tion and before payment of the balance of the price ; and that weighing to ascertain the amount to be paid was to be done by him as the hay was removed. It is true that, by the destruction of the hay before its removal and weighing, the ascertainment of the quantity by weighing was rendered impracticable; but, the sole question being as to the amount to be paid, the quantity must be ascertained by the best evi- dence available, and there was evidence from which the trial court was able to determine the quantity and fix the amount to be paid. The judgment of the trial court was correct, and it is Affirmed. SECT. II.] BANGER V. WATERBUEY. 67 SANGER V. WATERBURY. New York Court of Appeals. October 8-22, 1889. [Reported m 116 New York, 371.] Appeal from judgment of the General Term of the Supreme Court in the second judicial department, entered upon an order made December 14, 1886, which affirmed a judgment iu favor of the defend- ants, entered upon a verdict directed by the court. This was an action of replevin, brought to recover the possession of two hundred and thirty-eight bags of coffee, identified and described in the complaint as follows : — " 89 bags, marked No. 6, H. L. B. & Co., D. B. & Co. 32 bags, marked No. 8, H. L. B. & Co., D. B. & Co. ♦ 14 bags, marked No. 10, H. L. B. & Co., D. B. & Co. 29 bags, marked No. 12, H. L. B. & Co., D. B. & Co. 68 bags, marked No. 14, H. L. B. & Co., D. B. & Co. 6 bags, marked No. 16, H. L. B. & Co., D. B. & Co." The complaint alleged, and the answer admitted, " that on or about the 22d day of July, 1885, the said goods . . . were sold by the plain- tiffs to the defendants John K. Huston and James E. Huston, ... on the credit of sixty days for one-half thereof, and of ninety days for the balance thereof." It appeared that the plaintiffs on the 6th day of July, 1885, purchased of Boulton, Bliss, & Dallet 605 bags of coffee, then stored with E. B. Bartlett & Co. On the twenty-second day of July the plaintiffs sold the two hundred and thirty-eight bags of cof- fee hereinbefore referred to, to J. K. Huston & Co., of Philadelphia. That firm, on the 24th day of July, upon the security of the coffee thus purchased, borrowed from the defendants Waterbury & Force •$2,300, and then transferred the coffee to them. On July twenty- seventh following, said firm failed, making a general assignment. On the next day the plaintiffs commenced this action, by means of which the coffee was taken from the possession of Waterbury & Force. The coffee then was, as it had been from the time of the purchase by the plaintiffs, actually deposited in the warehouse of E. B. Bartlett & Co., and had not, as yet, been weighed. William W. Goodrich, for appellants. Edward M. Shepard, for respondents. Parker, J. The appellant contends that the title to the coffee in controversy did not pass to J. K. Huston & Co., and that, therefore, the transfer to Waterbury & Force did not vest in them the title or the possession. The sale is admitted. But as the coffee had to be weighed in order to ascertain the amount to be paid to plaintiffs, it is insisted that the title remained in the plaintiffs. In aid of this con- tention is invoked the rule that where something remains to be done 68 SANGEK V. WATERBURY. [CHAP. II. by the seller to ascertain the identity, quantity, or quality of the article sold, or to put it in the condition which the contract requires, the title remains in the vendor until the condition be complied with. The appellant cites a number of authorities which, he urges, so apply this rule as to make it applicable to the case here presented. It is said in Groat et al. v. Gile, 51 N. Y, 4.51, that " this rule has reference to a sale, not of specific property clearly ascertained, but of such as is to be separated from a larger quantity, and Is necessary to be identified before it is susceptible of delivery. The rule or principle does not apply where the number of the particular articles sold is to be ascer- tained for the sole purpose of determining the total value thereof at certain specified rates or a designated fixed price." This distinction is recognized and enforced in Crofoot v. Bennett, 2 N. Y. 258 ; Kimberly V. Patchin, 19 N. Y. 330 ; Bradley v. Wheeler, 44 id. 495. In Cro- foot V. Bennett {supra), the court say : "If the goods sold are clearly identified, then, although it may be necessary to number, weigh, or measure them, in order to ascertain what would be the price of the whole at a rate agreed upon between the parties, the title will pass." This expression of the court is cited with approval in Burrows v. Whitaker, 71 N. Y. 291, in which case, after a full discussion of the authorities, the court approved the rule as laid down in Groat v. Gile {supra). Now, applying that rule to the facts in this case, nothing remained to be done in order to identify the goods sold, because, while out of a larger lot two hundred and thirty-eight bags of coffee were disposed of, nevertheless, as appears from the complaint and the testimony ad- duced, the bags were so marked that there was no difficulty about identifying the particular bags sold. There remained, therefore, nothing to be done except to weigh the coffee for the purpose of ascer- taining the purchase-prid-e. For whether the two hundred and thirty- eight bags of coffee should prove to weigh more or less than the parties anticipated was not of any consequence. Whatever should prove to be for that number of pounds, J. K. Huston & Co. had agreed to pay. This case, therefore, does not come within the rule contended for by the appellant, but instead is governed by the principle enunciated in Groat V. Gile. Having reached the conclusion tliat the title and the possession passed to J. K. Huston & Co., it becomes unnecessary to consider any of the other questions discussed, for the plaintiff is without title upon which to found the right to maintain an action. The judgment appealed from should be affirmed. All concur. Judgment affirmed} 1 Blackwood v. Cutting Packing Co., 76 Cal. 212, 218; Lassing v. James, 107 Cal. 348; Farmers' Phosphate Co. v. Gill, 09 Md. 537; Cleveland v. Williams, 29 Tex. 2^4; Boaz v. Schneider, 69 Tex. 128, ace. SECT. III.] BISHOP V. SHILLITO. 69 SECTION III. Sales of Specific Goods, conditional upon paying or securing THE PRICE. BISHOP V. SHILLITO. In the King's Bench, Hilary Term, 1819. \Reported in 2 Barnewall ^- Alderson, 329, n. (a).] Trover for iron. The iron was to be delivered under a contract that certain bills outstanding against the plaintiff should be taken out of circulation. After a part of the iron had been delivered, and no bills had been taken out of circulation, the plaintiff stopped the farther delivery, anil brought trover for what had been delivered. Scarlett^ for defendant, contended that trover would not lie, and that the onl}' remedy for the plaintiff was to bring an action for the breach of the contract by the defendant. But the court held that this was onlj' a conditional delivery, and the condition being broken, the plaintiff might bring trover. Abbott, C. J., said he had left it to the jury to say whether the delivery of the iron and the redelivery of the bills were to be contemporary, and that the juiy found that fact in the affirmative ; and Bayley, J., added, that if a tradesman sold goods to be paid for on 'delivery, and his servant by mistake delivers them without receiving the money, he may, after demand and refusal to deliver or pay, bring trover for his goods against the purchaser.^ 1 Yaxlei/. ... If I come to another to buy a piece of cloth, and ask the price, and he savs that I may have it for 20 sh., then I cannot talce it, unless I pay hira the 20 sh., and this is the reason, if I take the cloth on the strength of this bargain, the otlier cannot take the money from me, and perhaps I am not vvortli the money ; so that it is implied in the bargain that he will pay the money now for the cloth, or otherwise he shall not have it. But if it be on time, it is a good bargain, because I have given him express liberty to pay on such a day. And in case I buy a horse for an ox, there the bargain is good without giving a day or making immediate delivery; for if I can take ttie horse, he can take the ox, and the property is in him now ; but of money it is otherwise, for I cannot take it, so that if it be called a bargain in law, peradventure the party may be without remedy for the money. Wherefore tiie law will not atljudge it a bargain until the money be paid or day given as above. Thkmailk. I say if one whom I know sells me a horse for 20 sh. and delivers it, now the property of the hor.se iis in me, although I do not pay him, and no day is given when payment shall be made, if the sale be outside a market between persons known to each other; but in a market between those who are strangers, and not known to each other, there the money ought to be delivered immediately as well as the horse, or otherwise it is only a com- munication ; but there was here between thenj a sale, and tlie vendor can have action of debt for this sum. . . . Fineux, Chief .Iustice. If one buy a piece of cloth, anrl ask the price of the merchant, and he says 20 sh., and the party says that he will give it, and takes the cloth, I say that it is in the election of tiie merchant to treat this as a bargain or not j for if he wish he may have an action of debt, and he may if he 70 BUSSEY V. BARNETT. [CHAP. II. BUSSEY V. BARNETT. In the Exchequer, January 14, 1842. [Reported in 9 Meeson ^ Welshy, 312.] Debt for goods sold and delivered, and on an account stated. The particulars of demand claimed the sum of £3 5s. 6d., being the balance of an account for goods sold and delivered by the plaintiff to the defendant. Pleas, except as to the sum of 4s. 6cZ., parcel, &c., nwi- quam indebitatus ; as to that sum, a tender, which was denied by the replication. At the trial before the under-sheriff of Middlesex, it appeared that the action was brought to recover an alleged balance of a disputed account for goods bought by the defendant, for ready money, at the plaintiff's shop. The defendant produced evidence to prove that, within ten minutes after the delivery of the goods at his house, he paid for them in full, with the exception of the 4s. Qd., as to which the tender was pleaded. It was objected for the plaintiff, that it was not competent to the defendant to give evidence of this payment, there being no plea of payment on the record ; but the under-sheriff thought that, under the circumstances, no debt ever arose between the parties, and therefore the evidence was admissible under the plea of nunquam indebitatus^ and he accordingly received it ; and the tender being also proved to the satisfaction of the jury, the defendant had a verdict on both issues. « C. Jones now moved for a new trial, on the ground of misdirection, and contended that the defence was inadmissible without a plea of pay- ment. [Alderson, B. The plea of nunquam indebitatus means that K there never was a sale of goods to the defendant on credit. This was a mere exchange of goods for money, and a debt never arose. Lord Abinger, C. B. There was no contract whereb}- the defendant became indebted to the plaintiff.] In Goodchild v. Pledge, 1 M. & W. 363, where to a count in debt for £20 for goods sold and delivered, the de- fendant pleaded that before the commencement of the suit, and when the said sum of £20 became due and payable, to wit, on, &c., the defendant paid the plaintiff the said sum of £20, according to the de- fendant's said contract and liability ; this plea was held bad on demurrer for concluding to the country, and not with a verification ; and Parke, B., wish retain the property until he receives the other's money. And if the other take the cloth by reason of that bargain against the vendor's will, he may have an action of trespass. . . . Y. B. 21 Hy. VII. 6, 4. (150.5-6). Briax. If I sell you my horse for .£10, it is lawful for me to retain the horse until I am paid, and yet I have no action of debt on the contract until the horse is deliv- ered; and it is clear that by the bargain the property was in him who bought the horse, but if the buyer offers him the money, and he refuses, then he may seize the horse, or have action of detinue or action of trespass at his pleasure, &c. Y. B. 18 Edw. IV. 21, 1. (1478-9). SECT. III.] PAUL V. REED. 71 there says : " The moment the goods are delivered, is there not a cause of action, throwing the proof of its discharge on the defendant?" And he adds, " The new general issue, that the defendant never was indebted, that is, at no instant of time, was framed for the express purpose of making all these defences pleadable by way of discharge." [Alderson, B. What the learned judge there means is, that the moment goods are delivered on credit, a contract arises whereby the defendant becomes indebted. No doubt that was a proper case for a plea of payment.] This was a defence in the nature of confession and avoidance. Lord Abinger, C. B. In this case the goods were not delivered upon a contract out of which a debt arose ; there was no promise to pa}', but immediate payment. Alderson, B. Wiiere there is a contract for the sale and delivery of goods for ready money, and ready money is paid, there is no debt. GuRNEY, B., concurred. Jiide refused. PAUL V. REED. Supreme Judicial Court of New Hampshire, June, 1872. [Reported in 52 New Hampshire, 136] The substance of the disclosure of the trustee in Azor Paul against Dexter G. Reed, and Dana R. Moody, trustee, was as follows : I moved into Mr. J^des's boarding-house on the 30th day of October last. Said Reed had been keeping the house for Mr. Edes as boarding-master ; he furnished breakfast tliat morning as such, and I furnished tlie din- ner. Soon after breakfast we examined the hog, butter, sugar, tea, and otlier articles. Agreed upon the price of each item. I put tlie sugar in with other sugar of mine. We changed the hog, at my re- quest, from one pen to another, to have him where I wanted to keep him. We figured up what the articles at the prices agreed upon amounted to, and found thej' came to thirty dollars and thirty cents. I took out my wallet to pay him for the articles, but before I could get the money ready to deliver him, I was trusteed. The articles were these: hog, $10.50; flour, S7 ; butter, $10; bedstead, $1; sugar and salt, $1.80. I was moving in, — had got one load in the house; he was moving out at the time of said occurrence. Mr. Reed kept a memorandum, and carried out the price of eacli article as it was agreed upon. Sheriff Barton served the process as Mr. Reed was figuring up the account. I tliink tlie amount of the bill had not been announced by Reed before the writ was served. I had the money to pay the bill in mj' pocket-book, and the pocket-book in my band, looking over the figures, when the writ was served. We understood I was to pay cash right in his fingers ; I did not ask any time for him to wait. Reed 72 PAUL V. HEED. [chap. II. asked me to give up the articles to him after service of process. I think he said, We can call it no sale, and I can take my stuff. He gave as a reason, tliat I had not paid him for it. I told him I would ask P2squire Bowers and Esquire J^des, and if they said I was safe to give it up, I had no objections to giving it up. Edes told me to let it stand ; it would be a question. The court held the trustee chargeable for $30.30. The principal defendant, claiming the property described in the disclosure, excepted, and the question was reserved. JBoioers, for the plaintiff. S. H. Edes, for the defendant and trustee. Bellows, C. J. Unless the principal defendant had another hog and other provisions or fuel, so that the value of his provisions and fuel exceeded twenty dollars, all the articles sold to the trustee were exempt from attachment. As there is no proof tliat he had another hog, or more provisions, or fuel, the court cannot find 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 question 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 sucli case tlie deliver}' and payment are to be concurrent acts ; and therefore, if the goods are put into the possession of the buyer in the expectation that he will immediately pay the price, and he does not do it, tlie 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 paj^raent of the price, and agree to postpone it to a future da}-, and proceed to complete tlie delivery ; in which case it would be absolute, and the title M'ould vest in tlie buyer. But in order to have this effect, it must appear that the goods were put into the buyer's possession witli the intention of vesting the title in him. If, however, the delivery and payment were to be simultaneous, and the goods were delivered in tlie 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 such circum- stances, as conditional upon the immediate payment of the price. 2 Kent's Com. *497; Chitty on Con.. 9th Am. ed., *350, note I and SECT, III.] PAUL V. EEED. 73 cases; Story on Con., sees. 796, 804 ; Palmer v. Hand, 13 Johns. 434 ; Marston v. Baldwin, 17 Mass. 605; Leven v. Smith, 1 Denio, 573, and cases cited. So the doctrine v/as full^' recognized in Russell v. Minor, 22 Wend. 659, where, on the sale of paper, it was agreed that the buj-er should give his notes for it on delivery, and the delivery was in several parcels. On deliver}^ of the first, the seller asked for a note ; but the buyer answered that he would give his note for the whole when the remainder was delivered, and the parcel now delivered could remain until then. When the rest was delivered, the defendant refused to give his note ; and the court held that tlie delivery of all the goods was con- ditional, and that the seller might maintain replevin for all the goods. The general doctrine is fully recognized in this State in Luey v. Bund}-, 9 N. H. 298, and more especially in Ferguson v. Clifford, 37 N. H. 86, where it is laid down that if the delivery takes place when payment is expected simultaneoush* therewith, it is in law made upon the condition precedent that the price shall forthwith be paid. If this condition be not performed, the delivery is inoperative to pass the title to the property, and it may be instantly reclaimed b}- the vendor. The question then is, whether the delivery here was absolute, intend- ing 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 deliver}'. This is a question of fact, but it is sub- mitted to the court for decision. Ordinarily it should be passed upon at the trial term ; but w^here 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 pay- ment 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 b}' the service of this process. The evidence relied upon to pi'ove the delivery to be absolute and intended to pass the title at all events, is simply and solely the chang- ing of the hog into another pen, and mixing the sugar with other sugar of the buyer. Witliout 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 pay the price ; and we think that circumstance is not enough to show a purpose to make the deliver}- absolute, 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, 21 Penu, St. 359, 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 presence of both parties. On the delivery of the last lot, the buyer failed to pay, and the seller gave notice that he claimed the corn, and brought replevin, which was held to lie, — the court regarding the 74 HARKNESS v. RUSSELL. [CHAP. IL deliver}- as conditional, and the plaintiff in no fault for the intermin- gling 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 sufficient to prove an intention to pass the title absolutely. When 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 safel}- 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 reclaim them when the buyer declined to pay the price. The exception must therefore be sustained, and the Trustee discharged. HARKNESS v. RUSSELL. Supreme Court of the United States, November 17, 1885- NOVEMBER 8, 1886. [Reported in 118 Uriited States, 663.] This was an appeal from the Supreme Court of Utah. The action was brought in the District Court for Weber County, to recover the value of two steam-engines and boilers, and a portable saw-mill con- nected with each engine. A jury being waived, the court found the facts and rendered judgment for the plaintiff, Russell & Co. The plaintiff is an Ohio corporation, and by its agent in Idaho, on the 2d of October, 1882, agreed with a partnership firm by the name of Phelan & Ferguson, residents of Idaho, to sell to them the said engines, boilers, and saw- mills for the price of S4988, nearly all of which was secured by certain promissor}' notes, which severall}' contained the terms of the agreement between the parties. One of the notes (the others being in the same form) was as follows, to wit : Salt Lake City, Oct. 2, 1882. On or before the first day of May, 1883, for value received in one sixteen-horse portable engine. No. 1026, and one portable saw-mill. No. 128, all complete, bought of L. B. Mattison, agent of Russell & Co., we, or either of us, promise to pa}' to the order of Russell & Co., Massillon, Ohio, 8300, payable at Wells, Fargo & Co.'s bank, Salt Lake City, Utah Territory, with ten per cent interest per annum from Octo- SECT. III.] HARKNESS v. RUSSELL. 75 ber 1, 1882, until paid, and reasonable attorney's fees, or any costs that may be paid or incurred in 'any action or proceeding instituted for the collection of this note or enforcement of this covenant. The express condition of this transaction is such that the title, ownership, or posses- sion of said engine and saw-mill does not pass from the said Russell & Co. until this note and interest shall have been paid in full, and the said Russell & Co. or his agent has full power to declare this note due and take possession of said engine and saw-mill when they ma}- deem them- selves insecure, even before the maturity of this note ; and it is further agreed b}- the makers hereof, that if said note is not paid at maturit}', that the interest shall be two per cent per month from maturit}' hereof till paid, both before and after judgment, if any should be rendered. In case said saw-mill and engine shall be taken back, Russell & Co. maj- sell the same at public or private sale without notice, or the}' may with- out sale endorse the true value of the property on this note, and we agree to pay on the note any balance due thereon after such endorse- ment, as damages and rental for said machinery. As to this debt we waive the right to exempt or claim as exempt any property, real or per- sonal, we now own, or may hereafter acquire, by virtue of any homestead or exemption law. State or Federal, now in force, or that hereafter may be enacted. P. O., Oxford, Oneida County, Idaho Territory. §300. Phelan & Ferguson. Some of the notes were given for the price of one of the engines with its accompanying boiler and mill, and the others for the price of the other. Some of the notes were paid ; and the present suit was brought on those that were not paid. The property was delivered to Phelan & Ferguson, on the execution of the notes, and subsequently they sold it to the defendant Harkness, in part payment of a debt due from them to bim and one Langsdorf. The defendant, at the time of the sale to him, knew that the purchase-price of the property had not been paid/ to the plaintiff, and that the plaintiff claimed title thereto until such' payment was made. The unpaid notes given for each engine and mill exceeded in amount the value of such engine and mill when the action was commenced. The Territory of Idaho has a law relating to chattel mortgages [Act of January 12, 1875], requiring that every such mortgage shall set out certain particulars as to parties, time, amount, &c., with an affidavit attached, that it is bona fide, and made without any design to defraud and delay creditors ; and requiring the mortgage and affidavit to be re- corded in the county where the mortgagor lives, and in that where the property is located ; and it is declared that no chattel mortgage shall be valid (except as between the parties' thereto) without compliance with these requisites, unless the mortgagee shall have actual possession of the property mortga,ged. In the present case no affidavit was attached to the notes, nor were they recorded. 76 HARKNESS V. EUSSELI [CIIAP. II. The court found tli:ti it was the intention of Phelan & Ferguson, and of Russell & Co., that the title to the said property should not pass from Russell & Co. until all the notes were paivl. Upon these facts the court found, as conclusions of law, that the transaction between Phelan & Ferguson and Russell & Co. was a con- , ditional, or executor}- sale, and not an absolute sale with a lien reserved, ' and that the title did not pass to Phelan & Ferguson, or from them to the defendant ; and gave judgment for the plaintiff. The Supreme Court of the Territory affirmed this judgment. This appeal was taken from that judgment. Mr. Parley L. Williams {Mr. James JV. Kimhall and Mr. Abbot R. Ueyioood viQYQ with him on the brief), for appellant. Mr. Charles W. Bennett., for appellee. Mr. Justice Bradley, after stating the facts as above reported, de- livered the opinion of the court. The first question to be considered is, whether the transaction in question was a conditional sale or a mortgage ; that is, whethe_r it was a mere agreement to sell upon a condition to be performed, or an absolute sale, with a reservation of a lien or mortgage to secure the purchase- money. If it was the latter, it is conceded that the lien or mortgage was vo:d as against third persons because not verified by affidavit and not recorded as required b}' the law of Idaho. But, so far as words and the express intent of the parties can go, it is perfectly evident that it was not an absolute sale, but only an agreement to sell upon condition that the purchasers should pay their notes at maturity. The language is : " The express condition of this transaction is such that the title . . . does not pass . . . until this note and interest shall have been paid in full." If the vendees should fail in this, or if the vendors should deem themselves insecure before the maturity of the notes, the latter were authorized to repossess themselves of the machiner}', and credit the then value of it, or the proceeds of it if they should sell it, upon the unpaid notes. If this did not pay the notes, the balance was still to be paid by the makers by way of " damages and rental for said machinerj'." This stipulation was strictl}' in accordance with the rule of damages in such cases. Upon an agreement to sell, if the purchaser fails to exe- cute his contract, the true measure of damages for its breach is the dif- ference between the price of the goods agreed on and their value at the time of the breach or trial, which may fairh' be stipulated to be the price they bring on a re-sale. It cannot be said, therefore, that tlie stipula- tions of the contract were inconsistent with, or repugnant to, what tlie parlies declared their intention to be, namel}', to make an executory and conditional contract of sale. Such contracts are well known in the law and often recognized ; and when free from any fraudulent intent are not repugnant to an}' principle of justice or equity, even though possession of the propert}' be given to the proposed parchaser. The rule is formu- lated in the text-books and in many adjudged cases. In Lord Black- burn's Treatise oa the Contract of Sale, published forty years ago, two SECT. III.] HAEKNESS V. RUSSELL. 77 ' rules are laid down as established : (1) Tbpt where by the agreement the vendor is to do anything to the goods before delivery, it is a con- dition precedent to the vesting of the property. (2) That where any- thing remains to be done to the goods for ascertaining the price, such as weighing, testing, &c., this is a condition precedent to the transfer of the property. Blackburn on Sales, 152. And it is subsequently added, that '• the parties may indicate an intention, by their agreement, to make any condition precedent to the vesting of the property, and, if they do so, their intention is fulfilled." Blackburn on Sales, 167. Mr. Benjamin, in his Treatise on Sales of Personal Property, adds to the two formulated ruks of Lord Blackburn a third rule, which is supported by many authorities, to wit : (3) " 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 condition be fulfilled, even though the goods may have been actually delivered into the possession of the buyer." Benjamin on Sales, 2d ed., p. 236 ; 3d ed., § 320. The author cites for this proposition Bishop V. Shillito, 2 B. & Aid. 329, note (a) ; Brandt v. Bowlby, 2 Barn. & Adolph. 932; Barrow v. Coles (Lord EUenborough), 3 Campbell, 92 ; Swain v. Shepherd (Baron Parke), 1 Mood. & Rob. 223 ; Mires v. Solebay, 2 Mod. 243. In the last case, decided in the time of Charles II., one Alston took sheep to pasture for a certain time, with an agree- ment that if at the end of that time he should pay the owner a certain sum he should have the sheep. Before the time expired the owner sold them to another person ; and it was held, that the sale was valid, and that the agreement to sell the sheep to Alston, if he would pay for them at a certain day, did not amount to a sale, but only to an agreement. The other cases were instances of sales of goods to be paid for in cash or securities on delivery. It was held that the sales were conditional only, and that the vendors were entitled to retake tlie goods, even after delivery, if the condition was not performed, the delivery being consid- ered as conditional. This often happens in cases of sales by auction, when certain terras of payment are prescribed, with a condition that if they are not complied with the goods may be re-sold for account of the buyer, who is to account for any deficiency between the second.sale and the first. Such was the case of Lamond v. Davall, 9 Q. B. 1030, and many more cases could be cited. In Crawcour v. Robertson, 9 Ch. Div. 419, certain furniture dealers let Robertson have a lot of furniture upon his paying £10 in cash and signing an agreement to pay £5 per month (for wliich notes were given) until the whole price of tiie furniture shoultl l)e paid, and when all the instalments were paid, and not before, the furniture was to be the property of Robertson ; but if he failed to pay any of the instalments, the owners were authorized to take posses- sion of the property, and all prior payments actually made were to be forfeited. The Court of Appeal held that the property did not pass by this agreement, and could not be taken as Robertson's property by his trustee under a liquidation proceeding. Tlie same conclusion was reached 78 HARKNESS V. RUSSELL. [CHAP. 11. in the subsequent case of Crawcour v. Salter, 18 Ch. Div. 30. In these cases, it is true, suj)poit of the transaction was sought from a custom which prevails in the i)laces where the transactions took place, of hotel- keepers holding then- furniture on hire. But they show that the intent of the parties will be recognized and sanctioned where it is not contrary to the policy of the law. This policy, in England, is declared by statute. It has long been a provision of the English bankrupt laws, beginning with 21 James I., c. 19, that if any person becoming bankrupt has in his possession, order, or disposition, by consent of the owner, any goods or chattels of which he is the reputed owner, or takes upon himself the sale, alteration, or disposition thereof as owner, such goods are to be sold for the benefit of his creditors. This law has had the effect of ])reventing or defeating conditional sales accompanied by voluntary de- livery of possession, except in cases like those before referred to ; so that verv few decisions are to be found in the P^nglish books directly in point on the question under consideration. The following case pre- sents a fair illustration of the English law as based upon the statutes of bankru|)tcy. In Horn v. Baker. 9 East, 215, the owner of a term in a distillery, and of the apparatus and utensils employed therein, demised the same to .1 & S., in consideration of an annuity to be paid to the owner and his wife during their several lives, and upon their death the lessees to have the liberty of purchasing the residue of the term and the apparatus and utensils : with a proviso for re-entry if the annuity should at any time be two months in arrear. The annuity having be- come in arrear for that period, instead of making entry for condition broken, the wife and administrator of the owner brought suit to recover the arrears, which was stopped by the bankruptc}' of J. & S. The (jiiestion then arose whether the utensils passed to the assignees of J. & S. under the Bankrupt Act, as being in their possession, order, and dis- position as reputed owners ; and the court held that they did ; but that if there had been a usage in the trade of letting utensils with a distilleiy, the case would have admitted a different consideration, since such a custom might have rebutted the presumption of ownership arising from the j)ossession and apparent order and disposition of the goods. This case was followed in Holroyd r. Gwynne, 2 Taunt. 176. This presumption of property in a bankrupt, arising from his pos- session and reputed ownership, became so deeply embedded in the Kng- lish law, that, in process of time many persons in the profession, not adverting to its origin in the statute of bankruptcy, were led to regard it as a doctrine of the common law ; and hence, in some States in this country, where no such statute exists, the principles of the statute have been followed, and conditional sales of the kind now under considera- tion have been condemned, either as being fraudulent and void as against creditors, or as amounting, in effect, to absolute sales with a reserved lien or mortgage 1o secure the payment of the purchase-money. This view is based on the notion that such sales are not allowed by law, and that the intent of the parties, however honestly formed, cannot SECT. III.] HAEKNESS V. RUSSELL. 79 legally be carried out. The insuflSciency of this argument is demon- strated by the fact that conditional sales are admissible in several acknowledged cases, and, therefore, there cannot be any rule of law against them as such. They may sometimes be used as a cover for fraud, and, when this is charged, all the circumstances of the case, this included, will be open for the consideration of a jury. Where no fraud IS intended, but the honest purpose of the parties is that the vendee shall not have the ownership of the goods until he has paid for them, there is no general principle of law to prevent their purpose from having effect. In this country, in States where no such statute as the English act referred to is in force, many decisions have been rendered sustaining conditional sales accompanied by delivery of possession, both as between the parties themselves and as to third persons. In Hussey v. Thornton, 4 Mass. 404, decided in 1808, where goods were delivered on board of a vessel for the vendee upon an agreement for a sale, subject to the condition that the goods should remain the property of the vendors until they received security for payment, it was held (Chief Justice Parsons delivering the opinion) that the property did not pass, and that the goods could not be attached by the creditors of the vendee. This case was followed in 1822 by that of Marston v. Bald- win, 17 Mass. 606, which was replevin against a sheriff for taking goods which the plaintiff had agreed to sell to one Holt, the defendant in the attachment , but by the agreement the property w^as not to vest in Holt until he should pay $100 (part of the price), which condition was not performed, though the goods were delivered. Holt had paid $75, which the plaintiff did not tender back. The court held that it was sufhcient for the plaintiff to be ready to repay the money when he should be re- quested, and a verdict for the plaintiff was sustained. In Barrett v, Pritchard, 2 Pick. 512, 515-16, the court said: "It is impossible to raise a doubt as to the intention of the parties in this case, for it is ex- pressly stipulated that ' the wool before manufactured, after being manu- factured, or in any stage of manufacturing, shall be the property of the plaintiff until the price be paid.' It is difficult to imagine any good reason why this agreement should not bind the parties. . . . Tlie case from Taunton, Ilolroyd v. Gwynne, was a case of a conditional sale ; but the condition was void as against the policy of the statute 21 Jac. I., ch. 19, § 11. It would not have changed the decision in that case if there had been no sale ; for, by that statute, if the true owner of goods and chattels suffers another to exercise such control and management over them as to give him the appearance of being the real owner, and he becomes bankrupt, the goods and chattels shall be treated as his property, and shall be assigned by the commissioners for the benefit of his creditors. The case of Horn v. Baker, 9 East, 215, also turned on the same point, and nothing in either of these cases has any bearing on the present question." In Coggill v. Hartford & New Haven Railroad, 3 Gray, 545-547, the rights of a bona fide purchaser from one in pes- 80 HARKNESS V. RUSSELL. [CHAP. II. session under a conditional sale of goods were specifically discussed, and the court held, in an able opinion delivered by Mr. Justice Bigelow, that a sale and delivery of goods on condition that the title sliall not vest in the vendee until payment of the price, passes no title until tlie condition is performed, and the vendor, if guilty of no laches, may reclaim the property, even from one who has purchased from his vendee in good faith, and without notice. The learned justice commenced his opinion in the following terms : "It has long been the settled rule of law in this commonwealth that a sale and deliver}' of goods on condition that the propert}^ 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 condi- tion is not fulfilled, has a right to repossess himself of the goods, both against the vendee and against his creditors claiming to hold them under attachments." He then addresses himself to a consideration of the rights of a bona fide purchaser from the vendee, purchasing without notice of the condition on which the latter holds tlie goods in his pos- session ; and he concludes that the}' are no greater than those of a cred- itor. He says : " All the cases turn on the principle that the compliance with the conditions of sale and deliveiy is, by the terms of the contract, precedent to the transfer of the propert}' from the vendor to the vendee. The vendee in such cases acquires no property in the goods. He is onl}' a bailee for a specific purpose. The deliver}^ which in ordinary cases passes the title to the vendee must take efll'ect according to the agree- ment of the parties, and can operate to vest the property only when the contingency contemplated by the contract arises. The vendee, there- fore, in such cases, having no title to the propert}', can pass none to others. He has only a bare right of possession ; and those who claim under him, either as creditors or purchasers, can acquire no higher or better title. Such is the necessary result of carrying into eflTect the in- tention of the parties to a conditional sale and delivery. Any other rule would be equivalent to the denial of the validity of such contracts. But the}' certainly violate no rule of law, nor are they contrary to sound policy." This case was followed in Sargent v. Metcalf. 5 Gray, 30G ; Deshon V. Bigelow, 8 Gray, 159 ; Whitney v. Eaton, 15 Gray, 225 ; Hirschorn V. Canney, 98 Mass. 149 ; and Chase v. Ingalls, 122 Mass. 381 ; and is believed to express the settled law of Massachusetts. The same doctrine prevails in Connecticut, and was sustained in an able and learned opinion of Chief Justice Williams, in the case of Forbes v. Marsh, 15 Conn. 384, decided in 1843, in which the principal authorities are reviewed. The decision in this case was followed in the subsequent case of Hart v. Carpenter, 24 Conn. 427, where the question arose upon the claim of a bo7ia fide purchaser. In New York the law is the same, at least, so far as relates to the vendee in a conditional sale, and to his creditors ; though there has been some diversity of opinion in its application to bona fide purchasers from such vendee. As early as 1822, in the case of Haggerty v. Palmer, 6 SECT. III.] HARKNESS V. RUSSELL.' 81 Johns. Ch. 437, where an auctioneer had delivered to the purchaser goods sold at auction, it being one of the conditions of sale that en- dorsed notes should be given in payment, whicli tlie purchaser failed to give, Chancellor Kent held that it was a conditional sale and delivery, and gave no title which the vendee could transfer to an assignee for the benefit of creditors ; and he said that the cases under the English Bank- rupt Act did not apply here. The Chancellor remarked, however, that "if the goods had been fairly sold ])y P. (the conditional vendee), or if the proceeds had been actually appropriated l)y the assignees, before notice of this suit, and of the injunction, the remedy would- have been gone." In Strong v. Taylor, 2 Hill, 326, Nelson, C. J,, pronouncing the opinion, it was held to be a conditional sale where the agreement was to sell a canal-boat for a certain sum to be paid in freighting flour and wheat, as directed by the vendor, he to have half the freight until paid in full with interest. Before the raone\' was all paid the boat was seized under an execution against the vendee ; and in a suit by the vendor against the sheriff, a verdict was found for the plaintiff, under the instruction of the court, and was sustained in banc, upon the authority of the Massachu- setts case of Bai-rett v. Priichard, 2 Pick. 512. In Herring v. Hoppock, 15 X. Y. 409, 411, 414, the same doctrine was followed. In that case there was an agreement in writing for the sale of an iron safe, which was delivered to the vendee and a note at six months given therefor ; but it was expressly understood that no title was to pass until the note was paid ; and if not paid, Herring, the vendor, was authorized to re- take the safe and collect all reasonable charges for its use. The sheriff" levied on the safe as the propert}' of the vendee, with notice of the plaintiff's claim. The Court of Appeals held that the title did not pass out of Herring. Paige, J., said : " Whenever there is a condition pre- cedent attached to a contract of sale, which is not waived by an absolute and unconditional delivery, no title passes to the vendee until he per- forms the condition, or the seller waives it." Comstock, J., said that if the question were new, it might be more in accordance with the analogies of the law to regard the writing given on the sale as a mere security for the debt, in tlie nature of a personal mortgage ; but he considered the law as having iaeen settled l^y the previous cases, and the court unani- mously concurred in the decision. In the cases of Smyth v. Lynes, 1 Seld. (5 N. Y.) 41, and Wait v. Green, 30 Barb. 585 ; s. c. on appeal, 36 N. Y. 550, it was held that a ho7ia fxJe purchaser, without notice, from a vendee who is in possession under a conditional sale, will be protected as against the original ven- dor. These cases were reviewed, and, we think, substantially over- ruled, in the subsequent case of Ballard v. Burgett, 40 N. Y. 314, in which separate elaborate opinions were delivered by Judges G rover and Lott. This decision was concurred in by Chief Judge Hunt and Judges Woodruff, Mason, and Daniels ; Judges James and Murra}' dissenting. In that case Ballard agreed to sell to one France a yoke of oxen for a price agreed on, but the contract had the condition " that the oxen were 82 HAEKNESS V. EUSSELL. [CHAP. II. to remain the property of Ballard until they should be paid for." The oxen were delivered to France, and he subsequently sold them to the defendant liurgett, who purchased and received them without notice that the plaintiff had any claim to them. The court sustained Ballard's claim ; and subsequent cases in New York are in harmony with this decision. See Cole v. Mann, 62 N. Y. 1 ; Bean v. Edge, 84 N, Y. 510. We do not perceive that the case of Dows v. Kidder, 84 N. Y. 121, is adverse to the ruling in Ballard v. Burgett. There, although the plaintiffs stipulated that the title to the corn should not pass until pay- ment of the price (which was to be cash, the same day), 3'et they en- dorsed and delivered to the purchaser the evidence of title, namel}-, the weigher's return, to enable him to take out the bill of lading in his own name, and use it in raising funds to pay the plaintiff. The purchaser misappropriated the funds, and did not pay for the corn. Here the in- tent of both parties was that the purchaser might dispose of the corn, and he was merel}' the trustee of the plaintiff, invested by him with the legal title. Of course the innocent party who purchased the corn from the first purchaser was not bound by the equities between him and the plaintiff. The later case of Parker y. Baxter, 86 N. Y. 586, was precisely sim- ilar to Dows V. Kidder ; and the same principle was involved in Farwell V. Importers' and Traders' Bank, 90 N. Y. 483, where the plaintiff de- livered his own note to a broker to get it discounted, and the latter pledged it as collateral for a loan made to himself: the legal title passed, and although, as between the plaintiff and the broker, the former was the owner of the note and its proceeds, 3'et that was an equity which was not binding on the innocent holder. The decisions in Maine, New Hampshire, and Vermont are under- stood to be substantially to the same effect as those of Massachusetts and New York ; though by recent statutes in Maine and Vermont, as also in Iowa, where the same ruling prevailed, it is declared in effect that no agreements that personal propert}' bargained and delivered to another shall remain the property of the vendor, shall be valid against third persons without notice. George v. Stubbs, 26 Maine, 243 ; Sawj'er V. Fisher, 32 Maine, 28 ; Brown v. Haines, 52 Maine, 578 ; Boynton v. Libby, 62 Maine, 253; Rogers v. Whitehouse, 71 Maine, 222; Sargent V. Gile, 8 N. H. 325 ; McFarland v. Farmer, 42 N. H. 386 , King v. Bates, 57 N. H. 446 ; Hefflin v. Bell, 30 Vt. 134 ; Armington v. Hous- ton, 38 Vt. 448 , Fales v. Roberts, 38 Vt. 503 ; Duncans v. Stone, 45 Vt. 118; Moseley v. Shattuck, 43 Iowa, 540; Thorpe v. Fowler, 57 Iowa, 541. The same view of the law has been taken in several other States. In New Jersey, in the case of Cole v. Berry, 13 Vroom (42 N. J. Law), 308, it was held that a contract for the sale of a sewing-machine to be delivered and paid for by instalments, and to remain the property of the vendor until paid for, was a conditional sale, and gave the vendee no title until the condition was performed ; and the cases are very fully discussed and distinguished. SECT. III.] HARKNESS V. RUSSELL. 83 In Pennsylvania the law is understood to be somewhat different. It is thus summarized b}- Judge Depue, in the opinion delivered in Cole v. Berr}-, where he says : '"In Pennsylvania a distinction is taken between delivery under a bailment, with an option in the bailee to purchase at a named price, and a delivery under a contract of sale containing a reser- vation of title in the vendor until the contract price be paid ; it being held that, in the former instance, property does not pass, as in favor of creditors and purchasfers of the bailee, but that, in the latter instance, delivery to the vendee subjects the property to execution at the suit of his creditors, and makes it transferable to bona fide purchasers. Cham- berlain V. Smith, 44 Penn. St. 431 ; Rose v. Story, 1 Penn. St. 190; Marsh v. Mathiot, 14 S. & li. 214 , Haak v. Linderman. 64 Penn. St. 499." But, as the learned judge adds, ''This distinction is discredited by the great weight of authority, which puts possession under a con- ditional 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." In this connection see the case of Copland v. Bosquet, 4 Wash. C. C. 588, where Mr. Justice Washington and Judge Peters (the former deliv- ering the opinion of the court) sustained a conditional sale and delivery against a purchaser from the vendee, who claimed to be a bo7ia Jide purchaser without notice. In Ohio the validity of conditional sales accompanied by delivery ol possession is fully sustained. The latest reported case brought to our attention is that of Call v. Seymour, 40 Ohio St. 670, which arose upon a written contract contained in several promissory notes given for in- stalments of tlie purchase-money of a machine, and resembling very much the contract in the case now under consideration. Following llie note, and as a part of the same document, is this condition : " The ex- press conditions of the sale and purchase of the Separator and Horsc- Power for which this note is given, is such, that the title, ownership, oi possession does not pass from the said Seymour, Sabin & Co. until this note, with interest, is paid in full. The said Seymour, Sabm & Co. have full power to declare this note due and take possession of said Separator and Horse-Power at any time they may deem this note inse- cure, even before the maturity of the note, and to sell the said machine at public or private sale, the proceeds to be applied upon the unpaid balance of the purchase-price." The machine was seized under an attachment issued against the vendee, and the action was brought by the vendor against the constable who served the attachment. The case was fully argued, and the authorities pro and con duly considered by the court, which sustained the condition expressed in the contract and affirmed the judgment for the plaintiff. See also Sanders v. Keber, 28 Ohio St. 630. The same law prevails in Indiana : Shireman v. Jackson, 14 Ind. 459 ; Dunbar v. Kawles, 28 Ind. 225 ; Bradshaw v. Warner, 54 lud. 58 ; Hodson V. Warner, 60 Ind. 214 ; McGirr v. Sells, 60 Ind. 249. 84 .HARKNESS V. RUSSELL. [CLIAP. IL The same in Michigan : Whitney v. IMcConncll, 29 Mich. 12 ; Smith V. Lozo, 42 Mich. 6; Maiqneite Manufacturing Co. v. Jeffere}', 49 Mich. 283. The same in Missouri: Ridgewaj- v. Kenned}', 52 Missouri, 24; "Wangler v. FrankUn, 70 Missouri, 650 ; Sumner v. Cottey, 71 Missouri, 121. The same in Alabama: Fairbanks v. Eureka Co., 67 Ala. 109 ; Sum- ner V. Woods, 67 Ala. 139. The same in several other States. For a verj- elaborate collection of cases on the subject, see Mr. Bennett's note to Benjamin on Sales, 4th ed., § 320, pp. 329-336 ; and Mr. Freeman's note to Kanaga v. Taylor, 7 Ohio St. 134, in 70 Am. Dec. 62. It is unnecessar}' to quote further from the decisions ; the quotations already made show the grounds and reasons of the rule. Tlie law has been held differently in Illinois, and very nearly in con- formity with the English decisions under the operation of the bankrupt law. The doctrine of the Supreme Court of that State is, that if a per- son agrees to sell to another a chattel on condition that the price shall be paid within a certain time, retaining the title in himself in the mean- time, and delivers the chattel to the vendee so as to clothe him with the apparent ownership, a bojia fide purchaser or an execution creditor of the latter is entitled to protection as against the claim of the original vendor. Brundage v. Camp, 21 III. 330 ; McCormick v. Hadden, 37 III- 370 ; Murch v. Wright, 46 111. 487 ; Mich. Central Railroads. Phillips, 60 111. 190 ; Lucas v. Campbell, 88 111. 447 ; Van Duzor v. Allen, 90 111. 499. Perhaps the statute of Illinois on the subject of chattel mortgages has influenced some of these decisions. This statute declares that " no mortgage, trust deed, or other conveyance of personal property, having the etlect of a mortgage or lien upon such property, is valid as against the rights and interests of any third person, unless the possession thereof be deUvered to and remain with the grantee, or the instrument provide that the possession of the property may remain with the grantor, and the instrument be acknowledged and recorded." It has been supposed that this statute indicates a rule of public policy condemning secret liens and reservations of title on the part of vendors, and making void all agreements for such liens or reservations unless registered in the manner required for chattel mortgages. At all events, the doctrine above re- ferred to has become a rule of propert}' in Illinois, and we have felt bound to observe it as such. In the case of Hervey v. Rhode Island Locomotive Works, 93 U. S. 664, 671, where a Rhode Island company leased to certain Illinois railroad contractors a locomotive engine and tender at a certain rent, payable at stated times during the ensuing year, with an agreement that if the rent was duly paid the engine and tender should become the property' of the lessees, and possession was delivered to them, this court, being satisfied that the transaction was a conditional sale, and that, by the law of Illinois, the reservation of title by the lessors was void as against third persons, unless the agreement was SECT. III.] HARKNESS V. KUSSELL. 85 recorded (which it was not in proper time), decided that a levy and sale of the propcrt}- in Illinois, under a judgment against the lessees, were valid, and that the Locomotive Works could not reclaim it. Mr. Justice Davis, delivering the opinion of the court, said: "It was decided by this court in Green v. Van Buskirk, 5 Wall. 307, and 7 Wall. 139, that tlie liability of property to be sold under legal process, issuing from the courts of the State where it is situated, must be determined hy the law there rather than that of the jurisdiction where the owner lives. These decisions rest on the ground that every State has the right to regulate the transfer of property within its limits, and that whoever sends prop- erty to it impliedly submits to the regulations concerning its transfer in force there, although a different rule of transfer prevails in the jurisdic- tion where he resides. . . . The policy of the law in lUinois will not permit the owner of personal property to sell it, either absolutely or conditional!}', and still continue in possession of it. Possession is one of the strongest evidences of title to this class of property, and cannot be rightfully separated from the title, except in the manner pointed out by the statute. The courts of Illinois say that to sutfer, without notice to the world, the real ownership to be in one person, and the ostensible ownership in another, gives a false credit to the latter, and, in this wa}-, works an injury to third persons. Accordingly, the actual owner of personal property creating an interest in another to whom it is delivered, if desirons of preserving a lien on it, must comply with the provisions of the Chattel Mortgage Act. Rev. Stat. 111. 1874, 711, 712." The Illinois cases are then referred to by the learned justice to show the precise condition of the law of that State on the subject under consideration. The case of Hcrvoy v. Rhode Island Locomotive Works is relied on by the appellants in the present case as a decision in their favor ; but this is not a correct conclusion ; for it is apparent that the onh' points decided in that case were, first, that it was to be governed by the law of Illinois, the place where the property was situated ; secondly, that by the law of Illinois the agreement for continuing the title of the property in the vendors, after its delivery to the vendees, whereby the latter be- came the ostensible owner, was void as against third persons. This is all that was decided, and it does not aid the appellants, unless they can show that the law as held in Illinois, contrary to the great weight of authority in England and this country, is that which should govern the present case. And (his we think they cannot do. AVe do not mean to say that the Illinois doctrine is not supported by some decisions in other States. There are such decisions ; but they are few in number compared with those in which it is held that conditional sales are valid and lawful, as well against third pei'sons as against the parties to the contract. The a[)p('llants, however, rely witli much confidence on the decision of this court in Ileryford v. Davis, 102 U. S. 235, 243, a case coming from INIissouri, where the law allows and sustains conditional sales. But we do not think that this case, any more than that of Hervey v. 86 HARKNESS V. RUSSELL. [CHAP. IL Rhode Island Locomotive "Works, will be found to support their views. The whole question in Heryford v. Davis was as to the construction of the contract. This was in the form of a lease; but it contained pro- visions so irreconcilable with the idea of its being reallj- a lease, and so demonstrable that it was an absolute sale with a reservation of a mort- gage lien, that the latter interpretation was given to it by the court. This interpretation rendered it obnoxious to the statute of Missouri re- quiring mortgages of personal property to be recorded in order to be valid as against third persons. It was conceded by the court, in the opinion delivered by Mr. Justice Strong, that if th'3 agreement had really amounted to a lease, with an agreement for a conditional sale, the claim of the vendors would have been valid. The first two or three sentences of the opinion furnish a key to the whole effect of the decision. Mr. Justice Strong says : " The correct determination of this case de- pends altogether upon the construction that must be given to the con- tract between the Jackson & Sharp company and the railroad company, against which the defendants below recovered their judgment and ob- tained their execution. If that contract was a mere lease of the cars to the railroad compan}', or if it was only a conditional sale, which did not pass the ownership until the condition should be performed, the prop- erty was not subject to levy and sale under execution at the suit of the defendant against the company. But if, on the other hand, the title passed by the contract, and what was reserved b}- the Jackson & Sharp company was a lien or security for the payment of the price, or what is called, sometimes, a mortgage back to the vendors, the cars were sub- ject to levy and sale as the property of the railroad company." The whole residue of the opinion is occupied with the discussion of the true construction of the contract, and, as we have stated, the con- clusion was reached that it was not really a lease, nor a conditional sale, but an absolute sale, with the reservation of a lien or securit}- for the pa3'ment of the price. This ended the case ; for, thus interpreted, the instrument inured as a mortgage in favor of the vendors, and ought to have been recorded in order to protect them against third persons. But whatever the law may be with regard to a bo7ia fide purchaser from the vendee in a conditional sale, there is a circumstance in the present case which makes it clear of all difficult}'. The appellant in the present case was not a bona fide purchaser without notice. The court below find that at the time of and prior to the sale he knew the purchase- price of the property had not been paid, and that Russell & Co. claimed title thereto until such pa3'ment was made. Under such circumstances, it is almost the unanimous opinion of all the courts that he cannot hold the property as against the true owners. But as the rulings of this court have been, as we think, somewhat misunderstood, we have thought it proper to examine the subject with some care, and to state what we re- gard as the general rule of law, where it is not affected hy local statutes or local decisions to the contrary. It is onlj- necessarj- to add that there is nothing either in the statute SECT. III.] SPOONER V. CUMMINGS. 87 or adjudged law of Idaho to prevent, in this case, toe operation of the general rule, which we consider to be estabUshed by overwhelming authority, namely, that, in the absence of fraud, an agreement for a con- ditional sale is good and valid, as well against third persons as against ' the parties to the transaction ; and the further rule, that a bailee of per- sonal property cannot convey the title, or subject it to execution for his own debts, until the condition on which the agreement to sell was made has been performed. The judgment of the Supreme Court of the Territory of Utah is Affirmed. SPOONER V. CUMMINGS. Supreme Jddiciax, Court of Massachusetts, January 15, 16- March 11, 1890. [Reported in 151 Massachusetts, 313.] Two actions of replevin, of a horse and of a mare respectively. The answer in each case contained a general denial, and that in the second case also set up fraud and laches on the part of the plaintiff, and an authorit}' from him to sell the mare to the defendant. Trial in the Su- perior Court, before Aldrich, J., who allowed a bill of exceptions in each case. In the first case there was evidence that on May 26, 1888, the plain- tiff, who then owned the horse in question, sold it to one Pope, who bought and received it upon an agreement in writing signed by him, which recited that the horse was to be and remain the entire and abso- lute property of the plaintiff until paid for in full by Pope ; that the plaintiff was a dealer in horses, and had sold horses to Pope for several years ; and that Pope, before paying the plaintiff for the horse in ques- tion, resold it to the defendant, on June 2, 1888, and received payment for it from him. The plaintiff contended, and asked the judge to rule, that the defend- ant, under his answer, could only be permitted to show that the condi- tional agreement was not made, or that the horse had been paid for by Pope. The judge declined so to rule, but ruled that the defendant might be permitted to show that the plaintiff gave to Pope authority, express or implied, by the course of dealing between them, to sell the horse before pa3'ment ; and the plaintiff excepted. The defendant thereupon introduced evidence which showed that for a long period the plaintiff and Pope had engaged in similar transactions, and that, according to the course of dealing between them. Pope pur- chased horses from the plaintiff, and gave him similar conditional agree- ments in writing ; and that the plaintiff would urge Pope to sell such horses, and the latter, before paying for them, would resell them and 88 SPOONER V. CUMMINGS. [CHAP. II. send aionc}' to the plaintiff, which the latter would appl}- as he saw fit on an}- of the agreements. One Trull was permitted to testifj' against tlie plaint ilf's objection, that about the middle of June, 1888, the plain- tiff told him to tell Pope that he had a carload of horses coming, and to sell as many horses as he could. The judge gave an instruction among others to the jury, which per- mitted them to find, from the course of dealing between the parties, that the plaintiff had given Pope implied authority to sell the horse in question ; and further instructed them, that, if the plaintiff, notwith- standing the conditional agreement between the parties, consented that Pope might sell the horse to the defendant, trusting chat Pope would send him the money in payment for it, he could not set up the condi- tional agreement with Pope as against the defendant. The jury returned a verdict for the defendant ; and the plaintiff al- leged exceptions. i^. A. GasJcill and C. W. Wood, for the plaintiff. J. W. McDonald, for the defendant. Knowlton, J. Under the answer of the defendant, any evidence was competent which tended to contradict the contention of the plain- tiff, that the title to the horse and the right of possession were in him. Verry v. Small, 16 Gray, 121, 122; Whitcher v. Shattuck, 3 Allen, 319. Tiie defendant was not a party to the written contract between the plaintiff and Pope, but claimed outside of it, and in support of his own title he might show b}' parol what was the real arrangement between them, even if it differed from that coritained in the writing. Kellogg v. Tompson, 142 Mass. 76. If the plaintiff expressly or impliedly author- ized the sale by Pope to him, he, having bought in good faith from the apparent owner, acquired a good title. It is immaterial whether hir right depends upon an actual authority to make the sale, or upon facts which estop the plaintiff from denying the validity of the sale. Burbank V. Crooker, 7 Graj', 158, 159 ; Ilaskins v. Warren, 115 Mass. 514, 538. Fall River National Bank v. Buffinton, 97 Mass. 498 ; Fowler v. Parsons, 143 Mass. 401 ; Tracy v. Lincoln, 145 Mass. 357. The testimony as to the course of dealing between the plaintiff and Pope, involving a long series of transactions, all of the same kind and conducted generally in the same way, was competent, as tending to show an expectation and understanding on the part of both that Pope would sell the horses which he bought of the plaintiff as he had opportunity, and that he was impliedly authorized to sell this horse to the defendant. Hubbell V. Flint, 13 Gray, 277 ; Bragg v. Boston & Worcester Railroad, 9 Allen, 54 ; Lynde v. McGregor, 13 Allen, 172 ; First National Bank V. Goodsell, 107 Mass. 149. The testimony of Trull as to the message sent to Pope by the plaintiff, about the middle of June, was of a conver- sation so soon after the sale of June 2 to the defendant, that the judge might well admit it in his discretion. It related to the general course of dealing of which the sale to Pope of the horse replevied was a part. The jury were rightly permitted to find that the plaintiff impliedly SECT. IV.] ANONYMOUS. 89 authorized the sale by Pope to the defendant, ancl that he was estopped to deny the validity of the title which the defendant acquired, relying on Pope's possession and apparent ownership. Exceptions overruled. Note. — Statutes have been passed, regulating conditional sales in Alabama, Arizona, Colorado, Connecticut, Florida, Georgia, Iowa, Kansas, Kentucky, Maine, Massachusetts (as to household furniture only), Minnesota, Missouri, Montana, Nebraska, New Hamp- shire, New Jersey, New York, North Carolina, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Texas, Vermont, Virginia, Washington, West Virginia, Wiscon- sin, Wyoming. Such statutes usually require the terms of the sale to be in ■writing and recorded in order to make the conditions effectual as to third parties. SECTION IV. Sale of Goods not Specified. ANONYMOUS. In the King's Bench, Michaelmas Term, 1505. {Reported in Ke'dweij, 11, pi. 25.] In an action of trespass on the case the plaintiff declared that he had bought of the defendant twenty quarters of malt for a certain sum of money paid beforehand, which he left with the defendant to keep safely to his use until a certain day had passed, and the defendant took upon himself to do this. Before the day for delivery the defendant converted the said malt to his own use to the wrong and damage of the plaintiff, &c. More. The plaintiff has declared that he bought twenty quarters of malt, and has not shown that it was in sacks, so that by the purchase the property was not changed, for the plaintiff could [not] take this malt from the defendant's storehouse, by virtue of such a sale of unas- certained malt, nor can he have an action of detinue ; but if it was in sacks or in another manner severed from the rest of the malt, there the purchase alters the property so that the vendee can take it or have deti- nue, and for the same reason an action on the case ; but as the case is here he is put to his action of debt for the malt. And the matter was considered at the bar and then by the whole bench. Upon which Frowike said, truly the case is good, and many good cases touching the mutter have been put, nevertheless the words at the time of the pur- chase govern the whole matter. If a man sells me one of the horses in his stable, and grants further that he will deliver the horse to me by a certain day, I may not take the horse without his delivery ; but if he sells me one of the horses in his stable for a certain sum of money paid beforehand, I may take tlie horse, — whatever horse pleases me without &ny delivery ; and in both cases if a third party converts all the horses 90 WHITEHOUSE V. FEOST, [CHAP. II. to bis own use so that I cannot secure my bargain, I shall have an action on the case against him because of the payment of the money. . . . And if I covenant willi a carpenter to make a house b}' a certain day, and he does not make the house by the day, I shall have a good action on the case because of the payment of my money, and yet it sounds only in covenant, and without payment of money in this case no rem- edy, and yet if he makes the house, and makes it badh', action on the case lies, and also for nonfeasance if the money be paid, action on the case lies. So that it seems to me in the case at bar the payment of the money is the cause of the action on the case without any alteration of any proi*erty.^ WHITEHOUSE and Others, Assignees of Townsend, a Bankrupt, V. J. FROST AND L. FROST, BUTTON, and BANCROFT. In the King's Bench, July 6, 1810. [Reported in 12 East, 614.] In trover to recover the value of some oil, the property of the bank- rupt, which was tried at Lancaster, in March last, a verdict was found for the plaintiffs for £390, subject to the opinion of the court on the following case : — The plaintiffs are assignees of John Townsend, late a merchant at Liverpool ; the two Frosts are merchants and partners in Liverpool ; and the other defendants, Dutton & Bancroft, are also merchants and partners in the same town. On the 7th of February, 1809, Townsend purchased from tlie defendants, J. & L. Frost, ten tons of oil, at £39 per ton, amounting to £390, for which Townsend was to give his accept- ance payable four months after date ; and a bill of parcels was rendered to Townsend by the Frosts, a copy of which is as follows : — J This case is also reported in Keihvey, 69, pi. 2, and in Y. B.20 Hy. VII.8, 18. In the latter report Kingsmil, Justice, said : " This action does not lie, but deht should be brought, for the property is not changed by the bargain, because it is not ascertained, and that must be done by the delivery of the defendant. And it is at his pleasure to pay whatever grains he will, for if he buys twenty quarters of another he may pay the plaintiff with them, which proves that the property is not in the plaintiff, no more than the money which the plaintiff shall pay to the defendant." In 18 Edw. IV. 14, the justices agreed that a grant to take a deer in the grantor's park did not pass property in any deer. Brian, C. J., added : " But if I have a black deer among others in my park, I can grant him and the grant is good; and if I have two among others known, and I grant one or both of them, the grant is good, for this reason, that it is ascertained what thing is granted." In Heywood's Case, 2 Rep. 36, 37 a, it was resolved "If I give you one of my horses in my stable, there you shall have an election, for you shall be the first agent by taking or seisure of one of them." SECT. IV.] WHITEHOUSE V. FROST. 91 Liverpool, 7th February, 1809. Mr. John Townsend, Bought of J. & L. Frost, Ten tons Greenland whale oil In Mr. Staniforth's cisterns, at your risk, at £39 £390 Cr. 1809. February 14. By acceptance £390 For J. &, L. F., Wm. Pemberton. The said ten tons of oil at the time of his purchase were part of forty tons of oil lying in one of the cisterns in the oil-house at Liverpool, the key of which cistern was in the custod}' of the other defendants, Button & Bancroft, who had- before that time purchased from J. R. & J. Freme, of Liverpool, merchants, the said fort}' tons of oil in the same cistern ; and upon such purchase received from the Fremes the kej^ of the cistern. Afterwards Button & Bancroft sold ten of the forty tons they had so bought (being the ten tons in question) to the defendants, the Frosts, who sold the same in the manner before stated to Townsend. On the 7th of February, the day on which Townsend bought the ten tons of oil, he received from the defendants, Frosts, an order on Button & Bancroft, who held the key of such cistern, the}' having other interest therein as aforesaid, to deliver to him, Townsend, the said ten tons of oil ; a copy of which is as follows : — Messrs. Button & Bancroft, — Please to deliver the bearer, Mr. John Townsend, ten tons Greenland whale oil, we purchased from you 8th November last. (Signed) J. & L. Frost. The order was taken to Button & Bancroft by Townsend, and accepted b}' them upon the face of the order as follows : " 1809. Accepted, 14th February. Button & Bancroft." Townsend, according to the terras of the bill of parcels, namely, on the 14th of Februar}', 1809, gave to the defendants, Frosts, his acceptance for the amount of the oil, payable four months after date ; but which acceptance has not been paid. Townsend never demanded the oil from Button & Bancroft, who had the custody of it. The oil was not subject to any rent ; the original importer having paid the rent for twelve months, and sold it rent free for that time, which was not expired at Townsend's bankruptc}'. Oq the 23d of May, 1809, about three months after the purchase of the ten tons of oil, a commission of bankrupt issued against Townsend, under which he was duly declared a bankrupt, and the plaintiffs appointed his assignees. At the time of the purchase, and also at the time of Townsend's being declared a bankrupt, the oil was lying in the cistern mixed with other oil in the same ; and some time afterwards the defend- ants refused to deliver the same to the plaintiffs, notwithstanding a demand was made for the same by the assignees, and a tender of any charges due in respect thereof. When the whole of the oil lying in any 92 WHITEHOUSE V. FROST. [CHAP. II. of the cisterns in the oil-house Is sold to one person, the purchaser receives the ke}' of the cistern ; but when a small parcel is sold, the key remains with the original owner; and the purchaser is charged in pro- portion to the quantity- of oil sold, with rent for the same, until delivered out of the oil-house, unless such rent be paid by the original importer, as was the fact in the present case. If the plaintiffs were entitled to recover, the verdict was to stand ; if not, a nonsuit was to be entered. There was a similar action b}' the same plaintiffs against J. R. Freme and J. Freme, Button, and Bancroft, the circumstances of which were in substance the same. J. Clarke, for the plaintiffs. Scarlett, contra. Lord Ellenborough, C. J. This case presents a difference from the ordiuarj- cases which have occurred where the sale has been of chat- tels in their nature several, and where the transfer of the propert}' from the vendor by means of an order for delivery addressed to the wharfinger or other person in whose keeping they were, and accepted by him, has been held to be equivalent to an actual delivery ; the goods being at the time capable of being delivered. Here, however, there is this distin- guishing circumstance, that the ten tons of oil till measured off from the rest was not capable of a separate delivery ; and the question is, whether that be a distinction in substance or in semblance onl\'. Tlie whole fort}' tons were at one time the property of Button & Bancroft, who had the key of the cistern which contained them ; and tliey sold ten tons to the Frosts, who sold the same to Townsend, the bankrupt, and gave him at the same time an order on Button «& Bancroft for the delivery to him of the ten tons. To that order Button & Bancroft attorn, as I may say ; for they accept the order, b}' writing upon it "Accepted, 14th of Februar}', 1809," and signing their names to it. From that moment the}- became the bailees of Townsend, the vendee ; the goods had arrived at tlieir journey's end, and were not in transitu; all the right then of the sellers was gone by the transfer, and the}' could no longer control that deliver}' to which they had virtually acceded by means of their order on Button & Bancroft accepted by the latter. The question of stopping in transitu does not arise, taking the Frosts to be the original sellers, as between them and the bankrupt ; the oil had never been in the hands of the Frosts ; they only assigned a right to it in the hands of the common bailees, which before had been assigned to them. Grose, J. There can be no doubt that at the time of Townsend's bankruptcy the ten tons of oil in the cistern were at the risk of the bankrupt. All the delivery which could take place between these par- ties had taken place. Button & Bancroft, who had the custody of the whole in their cistern, had accepted the order of the sellers for the delivery to the bankrupt, and it only remained for Townsend, together with Button & Bancroft, to draw off the ten tons from the rest. Le Blan'C, J. Button & Bancroft had sold the ten tons of oil in SECT. IV.] AUSTEN V. CRAVEN. 93 question (which was part of a larger quantity, the wbole of wliich was under their loclc and key) to the Frosts, wlio sold the same to Townsend ; and there is no claim on the part of the defendants, Dutton & Bancroft, to detain the oil for warehouse rent. The Frosts never had any other possession of the oil than through Dutton & Bancroft ; but they gave to Townsend an order on these latter to dehver it to him ; and after the acceptance of that order Dutton & Bancroft held it for his use. But something, it is said, still remained to be done, namely, the measuring off of the ten tons from the rest of the oil. Nothing, however, remained to be done in order to complete the sale. The objection only applies where something remains to be done as between the buyer and seller, or for the purpose of ascertaining either the quantity or the price, neither of which remained to be done in this case ; for it was admitted by the persons who were to make the delivery to Townsend, that the quantity mentioned in the order was in the cistern in their custody, for they had before sold that quantity to the Frosts, of whom Townsend purchased it, and had received the price. Therefore, though something remained to be done as between the vendee and the persons who retained the custody of the oil, before the vendee could be put into separate pos- session of the part sold, yet as between him and his vendors nothing remained to perfect the sale. Bayley, J. There is no question of transitus here ; the goods were at their journey's end. "When, therefore, Dutton & Bancroft, who were then the owners of the whole, sold ten tons of the oil to the Frosts, those ten tons became the property of the Frosts ; and when they sold the same to Townsend, and gave him an order upon Dutton & Bancroft for the delivery of the ten tons purchased of them, the eft'ect of that order was to direct Dutton & Bancroft to consider as the property of Townsend the ten tons in their possession, which before was considered as tlie property of the Frosts ; and by the acceptance of that order Dutton & Bancroft admitted that they held the ten tons for Townsend, as his property ; and he had a right to go and take it, without the interference of the Frosts. Fostea to the 2>laintiffs. AUSTEN V. CRAVEN and Another. In Tiiv. Common Pleas, November 10, 1812. [Reported in 4 Taunton, 644.] The plaintiff's declaration contained two counts in case, founded on a breach of the duty which he averred to arise out of a sale made of sugars by the defendants to Kruso, and a further sale by Kruse to the plaintiff ; and also a count in trover for sugars. Upon the trial of the cause at the sittings after Hilary Term, 1812, at Guildhall, before Mansfield, Cli. J., it appeared that the plaintiff had in his two first 94 AUSTEN V. CRAVEN, [CHAP. IL counts incorrectly described the contract ; it therefore became a ques- tion, whether the plaintiff could recover in trover under the following circumstances: On the 7th of December, 1809, the defendants, who were sugar-retiners, entered into a contract to sell to Renold Dresden (who was clerk of, and bought for the use of Kruse) 50 hogsheads of sugar, the quality of which was described as being double loaves, at 100s. per cwt., 50 hogsheads of the quality described as Turkey B. at 855., 50 hogsheads of the qualit}- called Turkey C. at 75s., and 50 others of the quality called Turkey A. at 108s., to be delivei-ed free on board a British ship. They were to be paid for at the expiration of four months, allowing two months' interest, the seller paying all ex- penses up to the 1st da}' of April, 1810 ; after that time, if not shipped, the buj'er was to pay expenses ; and it was agreed that Kruse should give the defendants his guaranty in writing for R. Dresden. The seller of sugars, upon delivering them on board a British ship for ex- portation, becomes entitled to receive a considerable drawback, which is paid him by the government. The appellations given to the several parcels of sugar denoted certain qualities of sugar known in the trade. Kruse being in embarrassed circumstances, on the 30th of January, not having then named an}' British ship on board of which the sugars or any of them should be delivered, nor having paid for them, and no part of them having been delivered, he resold to the defendants, at an advanced price, the 150 hogsheads lastl}' named in the original con- tract, and shortly after he contracted to sell to the plaintiff the 50 hogsheads of double loaves, and gave the defendants an order to de- liver them to the plaintiff. The plaintiff gave notice to the defendants of his intended contract, and inquired whether the}'^ had 50 hogsheads of sugar belonging to Kruse, and whether he, the plaintiff, might safely purchase them of Kruse, and pay him the price, to which they answered in the affirmative, and said that they had the 50 hogsheads and would deliver them. The plaintiff thereupon paid Kruse the price at which he had contracted for them, and required the defendants to deliver them, which they, being unable to obtain paj-ment from Kruse, refused to do, whereupon the plaintiff brought this action ; and it was urged for him that, although ordinarily a vendor has the right to detain the goods which he contracts to sell until he is paid for them, yet that these defendants, having told the plaintiff that he might safel}' buy and pa}' Kruse, could not afterwards set up that lien. For the defendants it was objected that no specific 50 hogsheads had been so separated from the defendants' stock as to enable the plaintiff to recover in trover. The jury found a verdict for the plaintiff, subject to this objec- tion, which was reserved by the chief justice ; and in Easter term, /Shepherd., Serjt, obtained a rule nisi to set aside the verdict, and enter a nonsuit, against which Vavghan, Serjt., now showed cause. Shepherd am\ Best, Serjts. , in support of the rule. Mansfield, C. J. What the plaintiff's counsel says would have SECT. IV.] GILLETT V. HILL, 95 been an answer to the objection, if there had been a specific quantity of loaves in esse ; although it was part of the contract that they were to be delivered on board a British ship, there would have been con- version enough. But certainly, upon the evidence, there is no answer- ing the objection. Trover cannot be maintained but for specific goods. Any sugars of required quality would have satisfied this contract. It is a contract for a certain quantity of a specified quality of sugars. I say nothing on the case of the oil ; there it is held that trover will lie for a specific quantity of a liquid, mixed with a certain other quantity of the same hquid, without its ever having been separated ; how it is to be distinguished from the mass, I know not ; but that case stands quite on its own bottom ; it is unlike other cases. GiBBS, J. We need saj' nothing on that case ; suffice it that it is very distinguishable from this. Bule absolute. GILLETT V. HILL and Another. In the Exchequer, Hilary Term, 1834. [Reported in 2 Crompton ^~ Meeson, 530.] Trover to recover the value of fifteen sacks of flour. At the trial before Lord Lyndhurst, C. B., at the London sittings after last Trinity term, it appeared that one Orbell, a miller, had given che plaintiff an order on the defendants, who were his (Orbell's) wharf- ingers, for the delivery of twenty sacks of flour, which order was in the following terms : — Mrs. E. Hill & Son, Please to deliver to Mr. Gillett twenty sacks of households. Richard Orbell. This order was presented by the plaintifl!"s carman at the defendants' counting-house, but the defendants' foreman said that they had not more than five sacks to spare, but he miglit have that quantity. The carman then went away leaving the delivery order with the defendants' foreman, and it was filed by the clerk in the usual way. On the same day the carman brought an order from the plaintiff " to deliver five sacks ex 20," which were accordingly delivered. Application was made the next day for the remainder of the flour mentioned in the order, when the defendants' foreman said that the plaintiflf should have it as soon as they got any. Shortly after this, anotlier application was made, to which the answer was, that the defendants had not any flour of Orbell's to deliver. The delivery order for twenty sacks signed by Orbell was, pursuant to notice for that purpose, produced at the trial ; but the defendants not having produced the order from the plain- tiff to deliver " five sacks ex 20," the carman proved the delivery of an 95 GILLETT V. HILL. [CHAP. IL order from ths plaintiff to that effect, and tliat tlie five sacks were accord- ingl}' delivered. Tlie case on behalf of the defendants was, that they had no flour of Orbell's to deliver ; but their clerk on being cross-ex- amined would not swear that there were not fifty sacks of Orbell's flour on the defendants' wharf at the time that the order was lodged ; but said that, if there were, they were appropriated to prior orders. But no such orders were produced b}- tlie defendants. It was objected for the defendants, that, as no specific fifteen sacks of flo4.ir had been selected or appropriated by the wharfingers, so as to vest the property in the vendee, trover was not maintainable. The plaintiff contended that the acceptance of the delivery order for twenty sacks was a virtual appropriation of that quantity to the plaintiflfs use, and that the sub- sequent demand and refusal were evidence of a conversion. Lord Lyndhurst, C. B., left it as a question to the jury, whether there had been an acceptance by the defendants of the order for the deliver}- of the twenty sacks, and the jury found in the affirmative, and gave a verdict for the plaintiff for the value of the fifteen sacks. ]5ompas, Serjt., in Michaelmas term last, obtained a rule for a new trial, against which ,T. Williams was to have shown cause, but the court called on Bompas, Serjt., and Hoggins, in support of the rule. Lord Lyndhurst, C. B. I am of opinion tliat there ought not to be a new trial in this case. A point of law has been attempted to be raised, but the case was decided b}' the verdict of the jury on the facts. The order was in these terms: " Mrs. E. Hill &, Son, please to deliver to Mr. Gillett twenty' sacks of households." That order, on being pre- sented, was accepted, and accepted generally ; at least there was no evidence of any qualification of tlie acceptance. There was no indorse- ment of a partial acceptance, and it was filed by the defendants in the way in which it was proved that orders accepted generallj' were filed bj- them in the course of their business. That view of the case was confirmed by the evidence of the plaintiff's carman, who stated that, after leaving the first order for twenty sacks, he had afterwards brouglit an order from the plaintiff " for five sacks ex 20," and that five sacks were delivered according to that order. The jury were of opinion that the order for twent}- sacks was accepted generally ; and if that were so, it was an admission that there were twenty sacks of Orbell's flour in the defendants' possession. The case has been argued, however, on the ground of there having been more than twenty sacks of flour belonging to Orbell in the defendants' possession ; but there is no dis- tinct proof on the part of the defendants that they had more of Orbell's flour in their possession than those twenty sacks, or that the plaintiff knew that the defendants had more in their possession. I think, there- fore, that the verdict was right, and that trover is maintainal)le. There must, therefore, be no rule. Bayley, B. I am of the same opinion. There is no doubt that there was originally an order signed hy Orbell, and addressed to the defend- SECT. IV.] GILLETT V. HILL. 97 ants, requesting them to deliver twenty sacks of flour to the plaintiff. The order does not say twenty sacks ex a greater quantity, to be selected by the defendants, but twenty sacks specifically. The defend- ants knew what quantity of flour belonging to Orbell they had, and they might have indorsed on the back of the order that they had so many only ; and, from the circumstance of there being no indorsement that they accepted the order to a limited extent, and to a limited extent only, I should have thought that the jury would act upon a safe prin- ciple in believing that the defendants had twenty sacks belonging to Orbell in their possession, and the verdict of the jury therefore appears to me consistent with the evidence. It appears to me, that, looking at the form of the order, trover was the proper form of action, and that the cases which have been cited do not apply to this case. Those cases may be divided into two classes : one in which there has been a sale of goods, and something remains to be done by the vendor, and until that is done the property does not pass to the vendee so as to entitle him to maintain trover. The other class of cases is, where there is a bargain for a certain quantity ex a greater quantity, and there is a power of selection in the vendor to deliver which he thinks fit ; then the right to them does not pass to tlie vendee until the vendor has made his selection, and trover is not maintainable before that is done. If I agree to deliver a certain quantity of oil, as ten out of eighteen tons, no one can say which part of the whole quantity 1 have agreed to deliver until a selection is made. There is no individuality until it has been divided. But those cases do not apply here. Tliis was an order to deliver twenty sacks of flour, not out of a greater quantity, but twenty sacks specifically ; and when the defendants accept that order without restriction, they admit that they have twenty sacks, which they will appropriate to that order, and the defendants have no right after- wards to say that they have not twenty sacks unappropriated. The defendants should not have accepted the order generally, unless they meant to be bound by it; but having accepted the order generally, it seems to me that the property in the flour passed to the plaintifl', and that the verdict is right. Vaugiian, B. I think that the verdict was warranted both in law and in fact. The action of trover is founded upon a right of property, and to maintain the action it is essentially necessary to siiow property in the plaintiff", and possession and a conversion by the defendant. All those requisites are in my opinion complied with in this case. Attend- ing to the facts of the case, the delivery order is taken to the wharfinger to see if the party giving the order has tlie articles mentioned in it in the wharfinger's possession. The defendants in this instance attorn as it were to the delivery order, and admit the plaintiff's right to call upon them to deliver twenty sacks of flour. Having received that order, it is binding on them. If they were not in a condition to comply with the order, they should have communicated that fact when the order was . delivered ; and if they had only five sacks they should have limited 98 KNIGHTS V. WIFFEN. [CHAP. II. their acceptance of it to that amount, by indorsing it on the order. Instead of that, they receive the order generally, they file it, and they produce it on the trial. But then it is said that the defendants have not appropriated any particuhir fifteen sacks to this order ; and in sup- port of that objection several cases have been cited. In all those cases, however, if they are examined, it will appear that it was held essential that certain acts should be done, as weighing, &c., before the property vested ; and as those acts had not been done, the plaintiff failed to prove an absolute property in him. Here, however, the defendants admitted that they had twenty sacks in their possession (the property of Orbell), and they afterwards refused to deliver fifteen of that num- ber. Upon the authority of the cases, I think there is suflacient evi- dence of property, possession, and conversion, to warrant the jury in finding their verdict for the plaintiif, and to sustain this form of action. Gurnet, B., concurred. Hule discharged. KNIGHTS V. WIFFEN. In the Queen's Bench, June 18, 1870. [Reported in Law Reports, 5 Queen's Bench, 660.] Declaration for conversion of sixty quarters of barley of the plaintiff". Pleas: 1. Not guilty. 2. That the barley was n^t the property of the plaintiff". Issue thereon. At the trial before Keating, J., at the Surrey Spring Assizes, it ap- peared that the defendant, a corn-merchant, had a large quantity of barley, in sacks, lying in his granary, which adjoined the Stanstead Station of the Great Eastern Railway, He sold eighty quarters of this barley to one Maris, but no particular sacks were appropriated to the purchaser. While the barley remained in the defendant's granary, subject to the orders of Maris, the latter sold sixty quarters of it to the plaintiff", who paid him for them, and received from him the following delivery order, addressed, as was usual in similar transactions, to the Station-master, Stanstead : — Sir, — Deliver Mr. T. Knights sixty quarters of barley to my order. R. W. Maris, Jr. June 27, 1868. Underneath was written, — Thomas Knights, Jr., • Hemingford Gray, near St. Ives, Huntingdonshire. SECT, IV.] KNIGHTS V. WIFFEN. 99 The plaintiff sent this document to the station-master, and wrote with it : — Sir, — I enclose Mr. R. W. Maris, Jr.'s transfer of sixty quarters of barley to my account. Please confirm this transfer, and send me a sample, and say what weight is in due course. On receipt of this letter and the delivery order, the station-master showed them both to the defendant, who said, " All right; when you get the forwarding note I will put the barley on the line." Samples were afterwards given to the station-master, which were sent by him to the plaintiff. Three sacks were weighed. The plaintiff ultimately gave an order, or forwarding note, to the station-master, for the sixty quarters of barley to be sent to Cambridge, which he presented to the defendant, but Maris had then become bankrupt, and the defendant, as unpaid vendor, refused to part with the barley. The learned judge directed a verdict for the defendant, giving the plaintiff leave to move to enter a verdict for £53 18s. 7c?., the amount claimed. A rule was obtained pursuant to the leave reserved, on the ground that there was evidence which ought to have been submitted to the jury to prove that the defendant had accepted and agreed to act upon the deliver}' order of the vendee (Maris), and thus passed the property in the sixt}- sacks of barley ; or for a new trial on the ground that the judge ought to have directed a verdict for the plaintiff for three sacks at least. Wood Hill {Day with him) showed cause. Ingham (with him Parry, Serjt., and Kemp) in support of the rule. Blackburn, J. I think that the plaintiff is entitled to the verdict, and the rule should be made absolute to enter a verdict for him. I will state shortly what I consider to be the facts upon which the case seems to turn. The defendant Wiffen had in his own warehouse a large quantitj* of barle}", and he sold to Maris eight}' quarters, which, on the contract between him and Maris, remained in his possession as unpaid vendor. No particular sacks of the barley were appropriated as between Maris and Wiffen ; but at the time the contract was made Maris had a right to have eighty quarters out of that barley appropri- ated to him ; and at the same time Wiffen, as the unpaid vendor, had a right to insist on payment of the price before an}' part of the grain was given up. Maris afterwards entered into a contract with the plain- tiff, Knights, by which he sold him sixty sacks of the barley, and Knights paid him for them. A document was given by Maris to Knights in tiie shape of a deliveiy order addressed to a station-master of the Great Eastern Railwa}', instructing him to deliver to Knights' order sixty quarters of barley on his, Maris', 'account. Knights for- warded it to the station-master, enclosed in a letter authorizing the station-master to hold for him. The station-master went to Wiffen, .and showed him the delivery order and letter, and Wiffen said, "All ^/ 100 KNIGHTS V. WIFFEN. [CHAP. II. right ; when you receive the forwarding note, I will place the barley on the line." What does that mean? It amounts to this, that Maris ) having given the order to enable Knights to obtain the barley, Wiffeu ' recognized Knights as tlie person entitled to the possession of it. Knights had handed the delivery- order to the station-master, and Wiffen, when the document was shown to him, said, in effect, ''It is quite right ; I have sixt}' quarters of barley to Maris's order ; I will hold it for you ; and when the forwarding-note comes I will put it oq the railway for you." Upon that statement Knights rested assured, and Wiffen, bj' accepting the transfer which had been informall}' ad> dressed to the station-master, bound himself to Knights. The latter accordingl}', when he did not get the goods, brought an action of trover against Wiffen, saying, as it were, " You said that you had the sixty quarters of barle}', and that you would hold the goods for me. You cannot refuse to deliver to me ; if you do refuse it will be a con- version." And Wiffen now says, "It is all true, but I do refuse to deliver the barley. Granted that I previously said I would hold sixty quarters of barley for you, yet I had none to hold for you. I had no quarters belonging to Maris, for I never severed them from the bulk, and I am entitled to hold the wliole quantity as against Maris, until ] am paid the full price." No doubt the law is that until an appropri- ^ ation from a bulk is made, so that the vendor has said what portion ■ bdongs to liiin, and what portion belongs to the bu3'er, the goods re- main in solido, and no property passes. But can Wiffen here be permitted to sa}-, "I never set aside any quarters"? As to that, Woodley v. Coventry, 2 H. & C. 164 ; 32 L. J. (Ex.) 185, is very much in point ; with this difference only, that there the plaintiff acted on the statement of the warehouseman, and altered his position b}' pa}'- lug the vendee a part of the price, and so the doctrine of estoppel applied ; which doctrine is that where one states a thing to another, with a view to the other altering his position, or knowing that, as a "treasonable man, he will alter his position, then the person to whom the statement is made is entitled to hold the other bound, and the matter is regulated by the state of facts imported by the statement. Woodley had altered his position by paying part of the price, but Coventry did not know of it. In Stonard v. Dunkin, 2 Campb. 344, it is patent that the defendant knew the money was paid. In Hawes v. Watson, 2 B. & C. 540, it appears that payment had been made, but the defendant did not know of it, although, as a reasonable man, he might have known it was likely. But in neither of those cases did the defendants know that mone}' was going to be paid. In the present case the monc}' had been paid before the presentation of the delivery order ; but I think, nevertheless, that the position of the plaintiff was altered through the defendant's* conduct. The defendant knew that, when he assented to the delivery order, the plaintiff, as a reasonable man, would rest satisfied. If the plaintiff had been met by a refusal on the part of the defendant, he could have gone to Maris, and have demanded SECT. IV.] KNIGHTS V. WIFFEN. 101 back bis money, very likel}- he might not have derivecl much benefit if he had done so ; but he had a right to do it. The plaintiff did rest satisfied in the belief, as a reasonable man, that the property had been passed to him. If once the fact is established that the plaintiff's posi- tion is altered by relying on the statement and taking no steps further, the case becomes identical with Woodley v. Coventry, 2 H. & C. 164 ; 32 L. J. (Ex.) 185, and Hawes v. Watson, 2 B. & C. 540. It is to be observed, moreover, that the judgment of the court in Woodley v. Coventry, supra ^ did not rest on the fact of the payment of the price. It will be noticed there that, although the fact did exist of payment of price, Martin, B., seems to found his decision on the assenting to hold, and the fact that when that assent was communicated to the i:)laintiffs, they altered their position. In Gillett v. Hill, 2 C. & M. 530, there was no payment of the price, and the Court of Exchequer gave judg- ment against the wharfingers, on the ground that they were estopped from denying the facts, after the other party had altered his position, relying on their conduct when the delivery order was presented. In the present case the plaintiff altered his position, relying on the defend- ant's conduct when the delivery order was presented. The plaintiff may well say, " I abstained from active measures in consequence of your statement, and I am entitled to hold you precluded from denying that what you stated was true." Mellor, J. I am entirely of the same opinion. Lord Ellenborough says in Stonard v. Dunkin, 2 Campb. 344, "Whatever the rule may be between buyer and seller, it is clear the defendants cannot say to the plaintiff, 'The malt is not yours.' after acknowledging to hold it to his account. By so doing, they attorned to him ; and I should entirely overset the security of mercantile dealings were I now to suffer them to contest the title." I think the question is concluded by this and all the authorities, and the doctrine of estoppel, when generally applied to cases of this kind, is certainly very useful. The foundation of that doctrine is clearly stated in my brother Blackburn's book on Sale, p. 1 02, and I am not aware that any of the cases he cites and comments on in support of his reasoning have been ever overruled, qualified, or questioned. He says, " This is a rule, which, within the limits applied by law, is of groat equity ; for when parties have agreed to act upon an assumed state of facts, their riglits between themselves are justly made to depend on the conventional state of facts, and not on the truth. The reason of the rule ceases at once when a stranger to the arrangement seeks to avail himself of the statements which were not made as a basis for him to act upon. They are for a stranger evidence against the party making the statement, but no more than evidence which may be rebutted ; between the parties they form an estoppel in law." Lush, J. I also think that the plaintiff is entitled to judgment on this short and intelligible ground, supported by sound reason and In- all the authorities, that the defendant, by what he said to the station- 102 KIMBEELY V. PATCHIN. [CHAP. II. master, assented to the transfer, and induced the plaintiff to believe that he would hold the barley to his order. By so doing he altered the position of the plaintiff towards Maris. Tiie plaintiff might, on a re- fusal by the defendant to hold for him, have applied to Maris, and he was deprived of the information which would have caused him to have done so. The defendant is therefore precluded from denying what he said. There is no distinction whatever between this case and Woodle}' V. Coventry, 2 H. & C. 164; 32 L. J. (Ex.) 185, in principle. There the part}- actually paid the raonej', here the plaintiff had already paid the mone}- first ; but if his order had been rejected he might have re- quired his money back. Hide absolute to enter a vei^dlct for the plaintiff } KIMBERLY et al. v. PATCHIN. New York Court of Appeals, .June Term, 1859. [Reported in 19 New York Reports, 3a0.] Appeal from the Supreme Court. Action to recover the value of 6,000 bushels of wheat, alleged to have been the property of the plain- tiffs, and to have been converted by the defendant. Upon the trial before Mr. Justice Greene, at the Erie Circuit, it was proved that one Dickinson had in warehouse, at Littlefort, in Wisconsin, two piles of wheat, amounting to 6,249 bushels. John Shuttleworth proposed to purchase 6,000 bushels of wheat. Upon being shown the piles, he ex- pressed a doubt whether they contained that quantity. Dickinson declared his opinion that they did, and agreed to make up the quantity if they fell short. A sale was then made at seventy cents per bushel, Dickinson signing and delivering to Shuttleworth a memorandum, as follows : — Littlefort, February 17, 1848. JoHx Shuttleworth Bought of D. O. Dickinson 6,000 bushels of wheat, delivered on board, 70 cents . • . $4,200 Received his draft upon John Shuttleworth, of Buf- falo, for $2,100 To remit me 1,600 Five drafts of $100 each 500 4,200 D. O. Dickinson. -1 " At pre.sent I do not venture to differ from Knights v. Wiffen ; I understand that the learned judges construed a certain statement as having not merely its ordi- nary meaning, but also a mercantile meaning, and they were of opinion tliat tlie mer- cantile meaning of the statement was that the defendant had sold the goods separateu from other goods and held them for the benefit of the plaintiff. I confess it seems to me that in that case two well-known doctrines were mixed up. the doctrine of estoppel, and the doctrine of attornment by a ^yarehouseman who has goods in his hands." Per Brett, L. J. in Simon v. Anglo-American Telegraph Co. 5 Q. B. D. 188, 212. SECT. IV.] KIMBERLY V. PATCHIN. 103 He also signed and delivered to Shuttleworth, this paper, viz. : — LiTTLEFORT, Febfuarj 18, 1848. 6,000 bushels wheat. Received in store 6,000 bushels of wheat, subject to the order of John Shuttleworth, free of all charges, on board. D. O. Dickinson, The wheat was left undisturbed in the warehouse. Shuttleworth sold the wheat to the defendant, assigning to him the bill of sale and warehouse receipt. Dickinson shortl}' afterwards sold the whole quantity of wheat in the two piles to a person under whom the plain- tiffs derived title. The defendant having obtained the possession of the wheat, this action was brought. The judge, under exception by the defendant, directed a verdict for the plaintiffs, which was rendered, and the judgment thereon having been affirmed at General Term, in the eighth district, the defendant appealed to this court. John H. Reynolds, for the appellant. John L. Talcott, for the respondents. CoMSTOCK, J. Both parties trace their title to the wheat in con- troversy to D. O. Dickinson, who was the former owner, and held it in store at Little fort, Wisconsin. The defendant claims through a sale, made by Dickinson to one Shuttleworth on the 18th of Februarv, 1848. If that sale was effectual to pass the title, it is not now pre- tended that there is any ground on which the plaintiffs can recover in this suit. The sale to the person under whom they claim, was about two and a half months junior in point of time. The sale to Shuttleworth was by a writing in the form of a present transfer of 6,000 bushels of wheat, at seventy cents per bushel. No manual delivery was then made, but instead thereof the vendor exe- cuted and delivered to the vendee another instrument, declaring that he had received in store the 6,000 bushels subject to the vendee's order; of the price $2,600 was paid down, and the residue $1,600 which was to be paid at a future day, the purchaser afterwards offered to pay, according to the agreement. So far the contract had all the requisites of a perfect sale. The sum to be paid by the purchaser was ascertained, because the number of bushels and the price per bushel were specified in the contract. Although the article was not delivered into the actual possession of the purchaser, yet the seller, by the plain terms of his agreement, constituted himself the bailee, and henceforth stood in that relation to the purchaser and to the property. That was equal in its results to the most formal delivery, and no argument is re- quired to show that the title was completely divested, unless a ditficulty exists jet to be considered. The quantity of wlieat in store to which the contract related was estimated by the parties at about 6,000 bushels. But subsequently, after Dickinson made another sale of the same wheat to the party under whom the plaintiffs claim, it appeared on measurement that the number of bushels was 6,249, being an excess of 249 bushels. When 104 KIMBERLY V. rATCHIN. [CIIAP. II. Shuttle worlh bought the G,000 bushels, that quantit}' was mixed in the storehouse with the excess, aud no measurement or separation was made. The sale was not in bulk, but precisely of the 6,000 bushels. On this ground it is claimed, on the part of the plaintiffs, that in legal \ effect the contract was executory, in other words a mere agreement to sell and deliver the specified quantit}-, so that no title passed by the transaction. It is not denied, however, nor does it admit of denial, that the parties intended a transfer of the title. The argument is, and it is the only one which is even plausible, that the law overrules that intention, although expressed in plain written language, entirely appro- priate to the purpose. It is a rule asserted in man}' legal authorities, but which may be quite as fitly called a rule of reason and logic as of law, that in order to an executed sale, so as to transfer a title from one party to another, the thing sold must be ascertained. This is a self-evident truth, when applied to those subjects of property which are distinguishable b}- their physical attributes from all other things, and therefore, are capable of exact identification. No person can be said to own a horse or a pic- ture, unless he is able to identify the chattel or specify what horse or what picture it is that belongs to him. It is not only legallj-, but logically, impossible to hold property in such things, unless they are ascertained and distinguished from all other things; and this, I ap- prehend, is the foundation of the rule that, on a sale of chattels, in order to pass the title, the articles must, if not delivered, be designated, so that possession can be taken bj' the purchaser without any further act on the part of the seller. But property can be acquired and held in man}^ things which are incapable of such an identification. Articles of this nature are sold, not l)y a description which refers to and distinguishes the particular thing, but in quantities, which are ascertained b}' weight, measure, or count ; the constituent parts which make up the mass being undis- tingnishable from each other b}' any physical difference in size, shape, texture, or quality. Of this nature are wine, oil, wheat, and the other cereal grains, and the flour manufactured from them. These can be identified onl}- in masses or quantities, and in that mode, therefore, the}- are viewed in the contracts and dealings of men. In respect to such things, the rule above mentioned must be applied according to the nature of the subject. In an executed and perfect sale, the things sold, it is true, must be ascertained. But as it is not possible in reason and pliilosoph}' to identif}' each constituent particle composing a quan- tit}', so the law does not require such an identification. Where the quantit}' and the general mass from which it is to be taken are specified, the subject of the contract is thus ascertained, and it becomes a possi- ble result for the title to pass, if the sale is complete in all its other circumstances. An actual deliver}' indeed cannot be made unless the whole is transferred to tiie possession of the purchaser, or unless the particular quantity sold is separated from the residue. But actual SECT. IV.] KIMBERLY V. PATCHIN. 105 deliver}' is not indispensable in an}' case in order to pass a title, if the tiling to be delivered is ascertained, if the price is paid or a credit given, and if nothing further remains to be done in regard to it. It appears to me that a very simple and elementary inquiry lies at the foundation of the present case. A quantity of wheat being in store, is it possible in reason and in law for one man to own a given portion of it and for another man to own the residue without a sepa- ration of the parts ? To bring the inquiry to the facts of the case : in the storehouse of Dickinson there was a quantity not precisely known. In any conceivable circumstances could Shuttleworth become owner of 6,000 bushels, and Dickinson of the residue, which turned out to be 249 bushels, without tiie portion of either being divided from the other? The answer to this inquiry is plain. Suppose a third person, being the prior owner of the whole, had given to S. a bill of sale of 6,000 bushels, and then one to D. for the residue more or less, intend- ing to pass to each the title, and expressing that intention in plain words, what would have been the result? The former owner most certainly would have parted with all his title. If, then, the two pur- chasers did not acquire it, no one could own the wheat and the title would be lost. This would be an absurdity. But if the parties thus purchasing could and would be the owners, how would they hold it ? Plainly according to their contracts. One would be entitled to 6,000 bushels, and the other to what remained after that quantity was sub- tracted. Again suppose, Dickinson having in store and owning 249 bushels, Shuttleworth had deposited with him 6,000 bushels for storage merely, both parties agreeing that the quantities might be mixed. This would be a case of confusion of property where neither would lose his title. In the law of bailments it is entirely settled that S., being the bailor of the 6,000 bushels, would lose nothing by the mixture, and, it being done by consent, it is also clear that the bailee would lose nothing. Story on Bailments, § 40 ; 2 Bl. Cora. 405. These and other illustrations which might be suggested, demonstrate the possibility of a divided ownership in the 6,249 bushels of wheat. If, then, the law admits that the property, while in mass, could exist under that condition, it was plainly competent for the parties to the sale in question, so to deal with each other as to effectuate that result. One of them being the owner of the whole, he could stipulate and ' agree that the other should thenceforth own 6,000 bushels without a separation from the residue. And this I think is precisely what was done. The 6,000 bushels might have been measured and delivered to the purchaser, and then the same wheat might have been redelivered to the seller under a contract of bailment. In that case the seller would have given his storehouse receipt in the very terms of the one which he actually gave ; and he might, moreover, have mixed the ■wheat thus redelivered with his own, thereby reducing the quantity -^Id and the quantity unsold again to one common mass. Now the 106 KIMBERLY V. rATCHIN. [CHAP. 11. contract of sale and of bailment, both made at the same time, produced this very result. The formalities of measurement and delivery pursuant to the sale, and of redelivery according to the bailment — resulting in the same mixture as before — most assuredly were not necessary in order to pass the title, because these formalities would leave the prop- erty in the very same condition under which it was in fact left ; that is to say, in the actual custody of the vendor, and blended together in a common mass. Those formal and ceremonial acts were dispensed with by the contract of the parties. They went directly to the result with- out the performance of any useless ceremonies, and it would be strange, indeed, if the law denied their power to do so. There are in the books a considerable number of cases having a real or some apparent bearing upon the question under consideration. Some of them very unequivocally support the defendant's title under the sale to Shuttleworth. A few only of these will be cited. In Whitehouse v. Frost, 12 East, 614, the vendors owned forty tons of oil secured in one cistern, and they sold ten tons out of the forty, but the quantity sold was not measured or delivered. The purchaser sold the same ten tons to another person, and gave a written order on the original vendors, which, on being presented, they accepted, by writing the word "accepted" on the face of the order, and signing their names. It was held by the English Common Pleas that the title passed ; considerable stress being laid on the acceptance of the order, which, it was said, placed the vendors in the relation of bailees to the quantit}^ sold. This was in 1810. In the following 3ear the case of Jackson v. Anderson, 4 Taunt. 24, was decided in the King's Bench. That was an action of trover for 1,960 pieces of coin called Spanish dollars. Mr. Fielding, at Buenos Ayres, remitted to Laycock & Co., at London, S4,700, and advised the plaintiffs that 1,960 of the number were designed for them in payment for goods bought of them. Lay- cock & Co. received the 4,700 pieces, and pledged the whole of them to the defendant, who sold them to the Bank of England. It was held : 1. That the letter of advice was a sufficient appropriation of $1,960 to the plaintiffs. 2. That the plaintiffs and defendant did not become joint-tenants or tenants in common of the dollars. 3. That although no specific dollars were separated from the residue for the plaintiffs, yet as the defendant had converted the whole, trover would lie for the plaintiffs' share. Of course the action in its nature directlj' involved the plaintiffs' title, and it was held that the sale or appropriation of a part without any separation was a perfect sale. In Pleasants v. Pendleton, 6 Rand. 473, the sale (omitting immaterial circumstances) was of 119 out of 123 barrels of flour, situated in a warehouse, all of tlie same brand and qualit\'. It was held by the Virginia Court of Appeals, upon very elaborate consideration, and after a review of all tlie cases, that the title was transferred b}' the sale. See also Damon V. Osborn, 1 Pick. 477 ; Crofoot v. Bennett, 2 Comst. 2.58. In the last mentioned, which was decided in this court, the sale was of 43,000 SECT. IV.] KIMBERLY V. PATCIIIN. 107 bricks in an unfinished kiln containing a larger quantity. A formal possession of the whole brick-yard was taken by the purchaser. It was held that he acquired title to the 43,000, although no separation was made. In the opinion of Judge Strong, the case was made to turn mainly on a supposed delivery of the whole quantity. But, with deference, that circumstance does not appear to me to have been the material one, inasmuch as all the bricks confessedly were not sold. The delivery therefore, did not make the sale, and if part could not be sold without being separated, I do not see how a formal delivery of the whole brick-yard could cure the difficulty. The learned judge speaks of the transaction as a delivery of the whole quantity ' ' with the privilege of selection." But assuming, as he did, that the want of selection or separation was the precise difficulty to be overcome, it is not easy to see how a privilege to select could change the title before the selection was actually made. The case, therefore, it seems to me, can only stand on the ground that the sale was, in its nature, complete ; the formal delivery of the whole being doubtless a circumstance en- titled to weight in arriving at the intention of the parties. The case is, in short, a strong authority to prove that, in sales by weight, meas- ure, or count, a separation of the part sold from the mass is not in all cases a fundamental requisite. Referring now to cases where it has been held that sales of this general nature were incomplete, it will be found that they are not essentially and necessarily opposed to the conclusion that, in the instance before us, the title was changed. In White, assignee, &c., v. Wilks, 5 Taunt. 176, a merchant sold twenty tons of oil out of a stock consisting of different large quantities in different cisterns, and at various warehouses. The note of sale did not express the quality or kind of oil sold, or the cistern or warehouse from which it was to be taken, and the purchaser did not even know where the particular oil lay which was to satisfy the contract. Very clearly the title could not pass upon such a sale; and so it was held, although the seller was entitled by the contract to charge "Is. per ton per week rent," for keeping the oil. A very different question would have been presented if the cistern from which the twenty tons were to be taken had been specified. The mass and quaUty would then have been ascertained. As it was, the subject of the contract was not identified in any manner. The remarks of the judge, evidently not made with much deliberation, roust be construed with reference to the particular facts of the case. In Austen v. Craven, 4 Taunt. 044, there was a contract to sell 200 hogsheads of sugar, to be of four different kinds and qualities which vvere specified. It did not appear that the seller, at the time of the contract, had the sugar on hand, or any part of it, and the fact was assumed to be otherwise. The sale was, moreover, at so much per cwt, requiring that the sugar should bo weighed in order to ascertain the price. In these circumstances the case was considered plainly dis- tinguishable from Whitehouse v. Frost, siqira, and it was held that 108 KIMBEKLY V. PATCHIN. [CHAP. II. the title did not pass. I do not see the slightest ground for question- ing the decision, iiltliough perhaps one or two remarks of Chief Justice JMansfield are capable of a wider application than the facts of the case ■would justify. The two cases last mentioned have been not unfrequently cited in various later English and American authorities, which need not be particularly referred to. Some of these authorities may suggest a doubt whether the title passes on a mere sale note by measure or weight out of a larger quantity of the same kind and qualit}-, there being no separation and no other circumstances clearly evincing an intention to vest the title in the purchaser. It is unnecessary now to solve that doubt, because none of the decisions announce the extreme doctrine that where, in such cases, the parties expressly declare an intention to change the title, there is any legal impossibility in the way of that design. Upon a simple bill of sale of gallons of oil or bushels of wheat, mixed with an ascertained and defined larger quantity, it may or may not be considered that the parties intend that the portion sold shall be measured before the purchaser becomes invested with the title. That ma}' be regarded as an act remaining to be done, in which both parties have a right to participate. But it is surely competent for the vendor to say in terms that he waives that right, and that the purchaser shall become at once the legal owner of the number of gal- lons or bushels embraced in the sale. If he cannot say this effectual!}-, then the reason must be that two men cannot be owners of separate quantities or proportions of an undistinguishable mass. That conclu- sion would be a naked absurdity, and I have shown that such is not the law. In the case before us the vendor not only executed his bill of sale professing to transfer 6,000 bushels of wheat, but, waiving all further acts to be done, in order to complete the transaction, he ac- knowledged himself, b}"^ another instrument, to hold the same wheat in store as the bailee thereof for the purchaser. If his obligations from that time were not simply and precisel}' those of a bailee, it is because the law would not suffer him to stand in that relation to the property for the reason that it was mixed with his own. But no one will contend for such a doctrine. I repeat it is unnecessary to refer to all the cases, or to determine between such as may appear to be in conflict with each other. None of them go to the extent of holding that a man cannot, if he wishes and intends so to do, make a perfect sale of part of a quantity without actual separation, where the mass is ascertained by the contract and all parts are of the same value and undistinguishable from each other. One of the cases, however, not 3-et cited, deserves a brief consider- ation, because it was determined in this court, and has been much relied on by the plaintiffs' counsel. I refer to Gardiner v. Suydam, 3 Seld. 3.37, The owner of flour delivered it in various parcels to a warehouseman, and from time to time took receipts from him. One of these receipts was held by the defendants and others by the plain- SECT. IV.] KIMBERLY V. PATCHIN. 109 tiffs, both parties having accepted and paid drafts on the faith thereof. The defendants' receipt was the first in point of time, and was for 536 barrels, being given at a time when in fact there were but 201 barrels in the warehouse, so that it covered 335 more than were then on hand. But other quantities were subsequently delivered at the warehouse, all of the same kind and quality, and the defendants, in fact, received by shipment to them, 500 barrels. For the conversion of this quantity they were sued by the plaintiffs, who had failed to receive the flour which their receipts called for. It cannot fail to be seen from this statement that the defendants, having the first receipt and receiving no more flour than it-specified, were entitled to judgment b^' reason of the priority of their title ; and this ground of decision is very clearly stated in the opinion of the chief judge. He thought if the transfer of the receipts could pass the title to the flour, notwithstanding the mixture of all the quantities together, that the one held by the defend- ants entitled them not only to the 201 barrels in store when it was given, but also to so many barrels delivered in store afterwards as were necessary to make up their number. This view, which appears to me correct, was fatal to the plaintiffs' case. But in another aspect of the controversy, the learned chief judge was of opinion that the transfer to the plaintiffs of the receipts held by them passed no title, on the ground that the quantities which they respectively covered were all mixed together in the storehouse. Assuming the correctness of that view — which I am constrained to question — the case is still unlike the present one. The transfer of a warehouseman's receipt, given to the owner, was certainly no more than a simple sale note of the specified number of barrels ; and where, in such cases, that is the whole transaction between vendor and vendee I have already ad- mitted a doubt, suggested by conflicting cases, whether the title passes. If the owner of the flour had held it in his own warehouse, and had not only given a bill of sale of a portion of it, but had himself executed to the purchaser another instrument declaring that he held the quan- tity sold as bailee and subject to order, then the case would have resembled the one now to be determined. We are of opinion, therefore, both upon authority and clearly upon the principle and reason of the thing, that the defendant, under the sale to Shuttleworth, acquired a perfect title to the COOO bushels of wheat. Of that quantity he took possession at Bufl'alo, by a writ of replevin against the master of the vessel in which the whole had been transported to that place. For that taking the suit was brought, and it results that the plaintiff cannot recover. It is unnecessary to decide whether the parties to the original sale became tenants in com- mon. If a tenancy in common arises in such cases, it must be with some peculiar incidents not usually belonging to that species of owner- ship. I think each party would have the right of severing the tenancy by his own act ; that is, the right of taking the portion of the mass which belonged to him, being accountable only if he invaded the quan- 110 FOOT V. MARSH. [CHAP. 11. tity which belonged to the other. But assuming that the case is one of strict tenancy ni common, the defendant became the owner of 6,000 and the phiintitfs of 249 parts of the whole. As neither could main- tain an action against the other for taking possession merely of the whole, more clearly he cannot if the other takes only the quantity which belongs to him. The judgment must be reversed and a new trial granted. Gray and Grover, JJ., dissented ; Strong, J., expressed himself as inclined to concur, if necessary to a decision, but it being unnecessary, he reserved his judgment. Judgment reversed and new trial ordered. FOOT V. MARSH. New York Court of Appeals, September 18, 1872, January Term, 1873. [Reported In 51 New York, 288.] Appeal from order of the General Term of the Supreme Court in the fifth judicial district, reversing judgment in favor of plaintiff, entered upon a verdict, and granting a new trial. This action was brought to recover damages for the alleged breach of a contract for the sale and delivery of a quantity of oil. On the trial it appeared that a party in Syracuse having about 150 barrels of oil consigned to him for sale, forty-six of which was known as Murray oil, forty-seven as Buffalo and P^rie oil, thirty-six as Lemon oil, and twenty-one barrels of oil marked V. B. That the Murray oil had pre- ference to the other oils on account of its reputation, and was worth two cents per gallon more than the Buffalo and Erie oil, or the oil in barrels marked V. B., and that the thirty-six barrels known as Lemon oil were inferior to either of the other descriptions, and that a portion of the entire quantity being then in the cellar of the warehouse of Thomp- son, Gage & Co., and the residue in the cellar of the warehouse of a Mr. Davis of that place, [the consignee] proposed to sell them to the de- fendants at sixteen cents per gallon. The defendants, not caring to purchase the whole, replied that if they could sell a portion, and re- tain a portion, they would buy. The consignee thereupon gave to one of the defendants a sample of oil, which, as the consignee at first testi- fied, was a poor specimen of the most inferior oil, but upon cross- examination it appeared to have been taken from the Buffalo and Erie oil, witli which the defendants went to the plaintiffs' place of business at Rome, Oneida County, and exhibited to them the sample ; told them where the oil was, and proposed to sell to them a portion of the whole 150 barrels. An agreement was finally concluded for a sale to the SECT. IV.] FOOT V. MARSH. Ill plaintiffs of 100 barrels of oil, by the sample then exhibited, for which the plaintiffs were to give their note at three months ; and as the bar- rels contained different quantities, in order to ascertain the amount for which the note should be given it was agreed that each barrel should contain an average of forty gallons, in all 4,000 gallons, and that they should be subject to twenty shillings storage per month until called for. There was upon the trial a conflict in the parol evidence as to whether it was not a part of the agreement for the purchase and sale of the oil that the defendants, and not the plaintiffs, should risk the leakage. There was also a conflict in the evidence as to whether it was not a part of the agreement that the defendants should set apart 100 barrels containing an average of forty gallons to the barrel, and as to whether they did not so set it apart in the place of its storage. It also appeared that after the parties had concluded all negotiations and come to an agreement for the sale and purchase of the oil, the plaintiffs executed and delivered to the defendants their note for the 8870 (the amount agreed upon), and the defendants executed and de- livered a bdl of sale, as follows : — N. B. Foot & Co. bought of Marsh, Delaye & Rogers, 100 bar- rels, at twelve shillings, $150 ; 4,000 gallons of oil at eighteen cents, §720=8870. Received payment by note at three months from June 7, 1862. Marsh, Delaye & Rogers. The above oil is to be delivered when called for, subject to twenty shillings per month storage, and the quality of the oil is to be like the sample delivered. Marsh, Delaye & Rogers. Defendants thereupon accepted the offer previously made by the consignee for the sale of the whole 150 barrels. When the plaintiffs' note matured they paid it, and afterward, on the 11th of November following, called upon the defendants for a delivery of the oil, and were shown 100 barrels which contained in all but 1,821 gallons, worth from five to ten cents per gallon less than the sample by which they purchased. The evidence tended to show that the loss occurred by leakage from the barrels in which it was stored, and that the de- preciation in quality was largely if not entirely attributable to the same cause. It also appeared that the remaining 2,179 gallons, if equal to the sample, would, at the time the plaintiffs called for a delivery of the oil, have been worth $1,198.45. The defendants' counsel objected to proving a deficiency, and, after the evidence closed, insisted that by the writing the contract for its sale was not executory, but an executed contract, and in substance, if any loss was thereafter occasioned by leakage, it was the plaintiffs', and not the defendants' loss, and hence, that tliere was no question for the jury. But the court ruled otherwise, and the defendants excepted. The court charged the jury, that if from the evidence they should Snd that it was agreed between the parties that the defendants should 112 FOOT V. MARSH. [CIIAP. II. set apart 100 barrels of oil, averaging forty gallons to the barrel, of a quality equal to tlie sample, and that they did set apart that number of barrels containing that average quantity, and of a quality equal to the sample furnished, that from thenceforth the oil was at the plain- tiffs' rislv, and they could not recover. But if, on the contrary, there was no such agreement made or authority given the defendants to set apart the oil, that then the contract became, from its terms, a contract to deliver 4,000 gallons of oil when called for, and that the defendants were bound to have it on hand when called for. To this part of the charge the defendants excepted. The court further charged, that if there was no authority given the defendants to set apart the oil, there was a deficiency for which the plaintiffs were entitled to recover $1,198.45 with $273.10 interest from the time of demand, making in all, $1,471.55. To so much of the charge as instructed the jury to allow interest, the defendants excepted. The jury rendered a verdict for $800, and thereupon the defendants upon the minutes moved for a new trial, which was denied, and judgment ordered and entered upon the verdict. D. 31. K. Johnson, for the appellants. J. D. Kernan, for the resi^ondents. Gray, C. The principal question presented for our consideration arises upon the defendants' exception to that portion of the charge given by the judge to the jury, in which he stated, in substance, that if no agreement was made or authority given to the defendants to set apart for the plaintiffs the oil described in the contract, that then the contract, from its terras, became a contract to deliver 4,000 gallons of oil when called for, and that the defendants, in order to comply with the call, were bound to have that quantity on hand whenever the call should be made. This case is by the defendants likened to the case of Kimberly and others v. Patchin, 19 N. Y. 330, and the ground upon which this portion of the charge is claimed to be erroneous is, that the contract, when read by the light of the circumstances sur- rounding it, is in principle, like the contract in that case, for the sale of 6,000 bushels of wheat, parcel of 6,249 bushels, at seventy cents per bushel, of which no separation or manual delivery was made, but as a substitute for a manual delivery, and to constitute the contract for its sale an executed, not an executory contract, the vendor gave to the purchaser his receipt for it, agreeing to deliver it to his order, free of all charges, whereupon the vendor was held to have constituted himself the bailee of the wheat, and to have thenceforth stood in that relation to the purchaser and the property ; to render the contract ef- fectual as an executed contract from the time it was made, the pur- chaser must have been invested with the right, after demand, to take the property. This was a right the defendants at the time of making the sale had no power to confer, they not being at the time tlie owners of any portion of it ; nor did they, in the place of a manual delivery, give to the plaintiffs their receipt for it, and thus attempt to constitute SECT. IV.] FOOT V. MAKSH. 113 themselves the bailees of the plaintiffs and of the oil, as did the ven- dor of the wheat in Kimberly v. Patchin. If the 150 barrels of oil, of which the 100 barrels and the 4,000 gallons were understood to be a part, were, like the wheat, all of the same quality, so that nothing but the quantity, without reference to quality, was to be taken from the larger amount, the extrinsic facts that the sale was at a profit of only two cents per gallon, and the risk of leakage during the summer months, so largely exceeded the profits of the sale, it might be urged, with more plausibility than it now can, that the agreement of the de- fendants to deliver the barrels and oil when called for was like the agreement contained in the receipt in Kimberly v. Patchin to deliver the wheat to the order of the purchaser, and that the defendants should, under the circumstances, as was the vendor in that case, be regarded as the bailees of the plaintiffs. But, in order to substitute an arrangement between the parties for a manual delivery of a parcel of property mixed with an ascertained and defined larger quantity, it must be so clearly defined that the purchaser can take it, or, as the assignee of the purchaser did in Kimberly v. Patchin, maintain replevin for it. In this case the larger quantity, parcel of which was under- stood to be contracted to the plaintiffs, consisted of 150 barrels con- taining three different qualities of oil, but sixty-eight of which (forty-seven of the Buffalo and Erie oil, and twenty-one barrels marked V. B.) corresponded with the sample by which the 100 barrels were sold. The residue, forty-six barrels of the Murray oil, was superior to the sample ; and thirty-six, known as the Lemon oil, were inferior to the sample. The plaintiffs would not have the right to take the Murray or superior oil, and could not be compelled to take the Lemon or inferior oil. And if the sample was, as the witness at one time stated, a poor sample of the most inferior oil, then but thirty-six barrels of that description, containing less than 1,500 gallons, could have been selected from the whole quantity, and hence the plaintiffs were without adequate means of redress, unless by action, for failing to deliver the quantity of oil sold conforming to the sample. The fact that the oil, which was the subject of the sale, was understood by the plaintiffs to be a parcel of a larger quantity, and that the sale was made at a profit of only two cents per gallon, while the risk of loss by leakage and evaporation was very large, are circumstances that would go far to prove that the defendants did not understand the legal import of the writing drawn and subscribed by them, or that they were overreached by the plaintiffs, who suggested their terms after, as one of them had testified, they refused to purchase, unless the defendants would guarantee them against leakage, which the de- fendants refused to do. But as no question was raised by the plead, ings, or elsewhere, as to a reformation of the contract, we must regard it as expressing the intentions of the parties and give it the interpre- tation which, under the circumstances, its language plainly imports. The charge was more favorable to the defendants than a fair construe- 114 SCUDDER V. WORSTER. [CHAP. II. tion of the written contract warranted. The conversations, out of which the defenihiuts sought to establish an agreement between the parties that the defendants might set apart the 100 barrels of oil for the plaintiffs, as well as the conversations as to the guarantee against loss by leakage, were all prior to the reduction of their agreement to writing, and sliould have been excluded from the consideration of the jury, leaving the writing as the only evidence of the agreement to be interpreted by the aid of extrinsic facts. No error was committed in the instructions to allow interest. The verdict was more favorable to the defendants than the charge warranted ; of that, however, they cannot, upon this appeal, complain. The order appealed from should be reversed. ■ All concur. Order reversed. HARVEY SCUDDER v. JOFIN WORSTER and Another. Supreme Judicial Court of Massachusetts, November Term, 1853. [Reported in 11 Cashing, 573.] This was an action of replevin, for 150 barrels of pork, to which the defendants pleaded only the general issue. It was submitted to this court on an agreed statement of facts, which, so far as necessary to a proper understanding of the points involved, sufficiently appear in the opinion. JI. A. Scudder, for the plaintiff. W. G. Russell, for the defendants. Dewey, J.^ . . . It appears from the facts stated, that on February 10, 1850, a contract was made by tlie defendants with Secomb, Taylor, & Company, to sell them 250 barrels of pork branded " Worcester &, Hart ; " that a bill of sale of the pork was made and delivered to them, and they gave the defendants their negotiable promissory notes of hand tlierefor, 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, «fe Company, on the 13th of May, 1850, sold 100 barrels of the pork to one Lang, who re- ceived the same of the defendants upon the order of Secomb, Taylor, & Company, that on the 27th of May, 1850, Secomb, Taylor, & Com- pany sold the plaintiff 150 barrels, with an order on the defendants therefor. The next day the plaintiff gave notice to the defendants of the purchase, and requested them to hold the same on storage for him, to which the defendants assented. On the 25th of June, Secomb, Ta^y- lor, & Company became insolvent, and on the same day the plaintiff ^ The part omitted does not affect the merits of the case. SECT. IV.] SCUDDER V. WOKSTER. 115 called upon the defendants for the purpose of receiving the 150 barrels of pork, but the defendants refused 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 b}' the defendants, an action of replevin was instituted, and 150 barrels of pork, the same now in contro- vers}', 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 qualit}' of the same brand, and also with some of a different brand, and so continued parcel of a larger quantit}' 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 Secorab, Taylor, & Company. Had these 250 barrels of pork been a separate parcel, or liad the parties designated them by any visible mark, distinguishing them from the residue of the vendors' stock of pork, the sale would clearly have been an absolute one, and the property would at once have passed to tlie 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 b}- the plaintiff's counsel fully establish the position, that what was done in this case would have transferred the property in the pork, if the sale had been of all the pork in the cellar, or of any entire parcel separated from the residue, or if the 250 barrels had some descriptive mark distinguishing them from the other barrels not sold. The difficulty in the case is, in maintaining that in the absence of each and all these circumstances, distinguishing the articles sold, the particu- lar barrels of pork selected by the officer from the larger mass when lie served this process, were the property of the plaintiff, or had ever passed to him. In addition, however, to the numerous cases cited to estaljlish the general principles contended for on the part of the plain- tiff, and which would have been decisive, if it had been a sale of all tiie pork in the cellar, or a particular parcel, or certain barrels having de- scriptive marks which would enable the vendee to separate his own from the residue, were cited several more immediately bearing upon the present case, and where property not separable has been lield to pass to the vendee. The leading case relied upon is that of Pleasants V. Pendleton, 6 Rand. 473. This was an action by the vendor to recover the price of 119 barrels of flour sold to the defendant. No other objec- tion existed to the validity of the sale, except that the 119 barrels were a parcel of 12.3 barrels, all of similar kind, in the same warehouse. There were certain brands or marks on the entire 123 barrels. The flour was destroyed by fire while on storage, and the vendee refused to pay for the 119, upon the ground that the sale was not perfected for want of separation from the 123 barrels. The court refused to sustain 116 SCUDDER V. WORSTER. [CHAP. II. the defence, and gave judgment for the plaintiff. In reference to this case, Grimke, J., in AVoods v. McGee, 7 Ohio, 127, says: " It is iinpos- sible to divest ourselves of the impression that the small difference between the aggregate mass and the quantity sold, the former being 123 barrels, and the latter 119, may have influenced the decision. It was a 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 1,969 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 S4,918, all of which came into the hands of the defendant. Among other points raised at the argument, was this, that there was nothing to distinguish the $1,969 from the entire mass ; that there had been no separation, and of course the plaintiff had no property in any particular portion of the mone3% The point, it seems, 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 81,969 from the remain- ing contents of the barrel, whether the action could lie. At a future day the court gave judgment for the plaintiff. The objection was over- ruled 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 strong- est case in favor of the plaintiff. The case was replevin against an officer who had attached goods as the property of Wellman & Ropes. The plaintiff had seventy-six bags of coffee, to which he became enti- tled as owner, upon an adjustment of accounts of a voyage he had performed for Wellman & Ropes, but the bags belonging to the plaintiff were in no way distinguished b}' marks, or separated from the other coffee of Wellman & Ropes. The plaintiff on his arrival at Salem, from his voyage, delivering the entire coffee to Wellman & Ropes, taking their receipt " for seventy-six bags of coffee, being his adventure on board schooner ' Libert}',' 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 undi- vided interest, and so could not maintain replevin. The court ruled that the plaintiff was not a tenant in common, but might have taken the number of bags to which he was entitled, at his own selection, and might maintain his action. 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 oiiginate by purchase from Wellman & Ropes. They became the specific property of the plaintiff' in that action on an adjustment of an SECT, IV.] SCUDDER V. WORSTER. 117 adventure, the whole proceeds of which were in his hands ; and sepa- rated with the possession, only when he took their accountable receipts for seventy-six bags, held by them on his account. It did not raise the question, here so fully discussed, as to what is necessary to con- stitute a delivery, and how far it was necessary to have a separation from a mass 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 the 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 particular barrels on ac- count of the plaintiff, or some designation of them 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 payment for 100 barrels of molasses sold to the defendant, the same being parcel of 125 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 baro-ain and sale. The goods must be 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. Pendle- ton, 6 Rand. 475, as decided on erroneous principles. The case of Hutchinson v. Hunter presented a case of a sub-contract or sale like the present, and it was urged that this differed the case from what it might otherwise 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 in Golder V. Ogden, 15 Penn. St. (3 Harris), 528, where a contract was made for tlie sale of 2,000 pieces of wall paper, the purchaser giving his notes therefor to the vendor, and taking away with him 1,000 pieces, and it was agreed that the other 1,000 pieces should remain until called for by the purchaser, upon a question of property in the remaining 1,000 pieces between the assignees of the vendor and the purchaser, it was held that these 1,000 pieces not having been selected by the buyer, or separated,* or set apart for him, but remaining mingled with other paper of same description, did not become the property of the alleged buyer, as against an assignment for the benefit of the creditors of the vendor. The prin- ciple advanced in that case seems to be the sound one: "That the property cannot pass until there be a specific identification in some way of the particular goods which the party bargains for. The law knows no 118 SCUDDEK V. WORSTER. [CHAP. II. such thing as a floating right of property, which ma\' attach itself either to one parcel or the other, as ma}' be found convenient afterwards." The case of Waldo v. Belcher, 11 Iredell, G09, was tlie case of a sale of corn b}' a vendor, having in his store 3,100 bushels of corn, and selling 2,800 bushels of the same, but the 2,800 bushels were never separated from the 3,100, and the whole was, after the sale, destro3'ed by fire ; and it was held that the property in the 2,800 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 separated. 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. Hun- newell, 13 Pick. 213, bears strongly upon the question before us. It was a sale of nine arches of bricks 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 quantit}' on hand to less than nine arches, upon a question of ijropert}' between the vendee and an attaching creditor of the vendor, it was held the purchaser took no property in the bricks, the sale being a part of a large mass, not delivered nor specifically designated. Blackburn, in his Treatise on Sales, p. 122, presents the law on thi-s subject thus : " Until the parties are agreed as to the specific identical goods, the contract can be no more than a contract to supplv goods ' answering a particular description, and since the vendor would fulfil his part of tlie contract b}' furnishing an}' parcel of goods answering that description, it is clear 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 princi- ples 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 150 barrels of pork taken by the plaintiff, under his writ of replevin, had never passed from the vendors, and therefore this action cannot 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 1.50 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 1.50 barrels of pork, this position might be tenable, and SECT. IV.] KEELER V. GOODWIN. 119 the defendants estopped to den}' the property of the plaintiff in such 150 barrels. This would be so if an action had been brought against the defendants as bailees of 150 barrels of pork, and for not delivering the same. But the distinction between the case of an action for damages for not delivering 150 barrels, and that of replevin, commanding the officer to take from the possession of the defendants 150 barrels, and deliver the same to plaintitf as his property-, is an obvious one. To sustain the former, it is only necessary to show a right to 150 barrels generally, and not any specific 150 barrels ; but to maintain replevin, the plaintiff must be the owner of some specific 150 barrels. If •bought, they must be specifically set apart, or designated in some way as his, and not intermingled with a larger mass of like kind owned by the vendor. Judgment for the defendants. CORNELIUS S. KEELER v. HERSEY B. GOODWIN. Supreme Judicial Court of Massachusetts, March, 1873. [Reported in 111 Massachusetts, 490.] Tort against Hersey B. Goodwin and Joseph H. Locke, for conver- sion of 1,000 bushels of corn. Writ dated November 7, 1870. At the trial in the Superior Court, before Lord, J., the following facts appeared : — On September 29, 1870, Wesley P. Balch bought 1,000 bushels of corn from the defendants, to be paid for in cash in ten days, and the defendants gave him an order on the warehouse where the corn was stored, being then parcel of a larger quantity lying in bulk. On Octo- ber 1, Balch indorsed and delivered the order to the plaintiff as security for a lien. The plaintiflT did not then know that the corn Ijad not been paid for, but Balch never paid for the corn, and, within ten days from September 29, became insolvent. About fifteen days after receipt of the order the plaintiff presented it to the warehouseman and demanded the corn. Delivery was refused for the reason that the order had been countermanded by the defendants ; and before this suit was brought the defendants took the corn away. The order was never presented to the warehouseman, except as above stated. The plaintiff offered evidence tending to prove a usage in the grain trade to treat an order on a wnreliouse as a delivery. The judge ruled that the action could not be supported, and directed a verdict for the defendants, which was returned. The judge reported the case for the determination of this court ; if the ruling was correct, judgment to be entered for the defendants, unless the plaintiff could maintain his action by an amendment ; if the ruling was erroneous, the verdict to be set aside and a new trial ordered. 120 KEELER V. GOODWIN. [CHAP. II. S. J. Thomas, for the plaintiff. A. Churchill & J. E. Hudson, for the defendants. Wells, J. There are two fatal ditticulties in the way of recovery by the plaintiff. 1. To maintain an action of trover, in favor of one who has never had possession, tliere must be proof both of title and right of present pos- session. Fairbank v. Phelps, 22 Pick. 535 ; Winship v. Neale, 10 Gray, 382 ; Landon v. Emmons, 97 Mass. 37. Here was a contract of sale of 1,000 bushels of corn, "parcel of a larger quantity lying in bulk." Until separation in some form, no title could pass. Young v. Austin, 6 Pick. 280 ; Merrill v. Hunnewell, 13 Pick. 213 ; Scudder v. Worster, 11 Cush. 573 ; Weld v. Cutler, 2 Gray, 195; Rojies v. Lane, 9 Allen, 502, 510; s. c. 11 Allen, 591. That it was on storage with a third party, as warehouseman, would make no difference in this respect. Delivery of the order upon the warehouseman authorized him to make the separation or appropriation necessary to complete the sale b}' giv- ing to the contract its intended effect upon the specific property covered b}- it. If that had been accomplished, either by actual separation, or by appropriation to the use or credit of tlie purchaser, in the usual mode of transacting the business of the warehouse, he would have ac- quired title, right of possession, and constructive possession of the grain so purchased. Gushing v. Breed, 14 Allen, 37G. But until some act takes place by which the relations of the ware- houseman, in respect to the property in his custody, are modified in accordance with the contract of sale, so that he may be considered as bailee for the seller and purchaser respectively, according to their sev- eral interests, and thus released, |)ro tanto, from his original liability to the seller alone, there is no such appropriation of the grain sold as will ripen the interest of the purchaser into title and right to the posses- sion of any specific portion of the bulk. Whether the assent of the warehouseman is necessar}' to the imposition of this twofold relation npon him, or whether presentation of the order alone, or notice of the sale would be sufficient, we need not now determine, because there was neither in this case, until after the authority of the warehouseman to make the appropriation had been revoked. The purchaser, therefore, never acquired any title or right of possession, and could transfer none, and consequently no right of action, to the plaintiff. 2. But regarding the sale and order for delivery as sufficient to make ;t effectual to pass the title as between the parties, still until actual and full delivery the seller is not deprived of his right to insist upon his lien for the price. Delivery to a carrier for transportation to the pur- chaser is sufficient to pass the title, and authorize the carrier to com- plete the deliver}' and make it absolute. But until so made absolute, tiie seller may revoke his authorit}-, and thus intercept the transmission, restore himself to possession, and ret.ain his lien. The same principle applies in all cases of inchoate delivery, by what- SECT. IV.] MORRISON V. WOODLEY. 121 ever mode of transmission of possession. Until the delivery is actual and absolute, tiie seller may suspend it, and revoke the authority of any intermediary to perfect it. M'Ewan v. Smith, 2 H. L. Cas. 309 ; Griffiths V. Perry, 1 E. & E. 680 ; Rowley v. Bigelow, 12 Pick. 307, 312 ; Mohr u. Boston & Albany Railroad Co., lOG Mass. 67. The in- solvency of Balch, the purchaser, was a sufficient justification for so doing, even if the sale was an unconditional one upon a credit of ten days. Arnold v. Delano, 4 Cush. 33 ; Stubbs v. Lund, 7 Mass. 453 ; Naylor v. Dennie, 8 Pick. 198. Judgment for the defendants.* EZEKIEL MORRISON v. GEORGE WOODLEY. Supreme Court of Illinois, September Term, 1876. [Reported in 84 Illinois, 192.] Mr. Justice Dickey delivered the opinion of the court. Appellant and appellee were both residents of Chicago, and each had his place of business there. On the 24th of February, 1870, appellant sold to appellee 3,000 railroad hemlock ties, at twenty cents each, and gave him a bill and receipt, in the words following : — Mr. George Woodley bought of E. Morrison 3,000 hemlock railroad ties, lying on Foss' dock, Muskegon, free of dockage, and subject to Chicago inspection, — ties to be taken off dock at the first of navigation. To 3,000 hemlock ties, @ 20 cents 8600.00 Received payment, Chicago, Feb. 24, 1870. E. MORRISON. Appellant, at that time, had lying on that dock in "Wisconsin some 7,000 to 8,000 of that kind of ties, these remaining there under the care of Mr. Pleming, who had bought tlie ties for appellant (but who had, as appellant testifies, no authority to sell or dispose of tlie same), until ]May. The appellee wrote to Fleming from Chicago, on the 7th of Ma}-, 1870, as follows : — 1 By chapter 93 of Massachusetts Acts of 1878, now enacted in Pub. Stat. c. 72, § 7, it is provided that where grain or other projjerty is stored in a public wandiouse in such a manner that different lots are mixed .so that the identity cannot be accurately preserved, tiie warehouseman's receipt for any portion sliall be deemed a valid title to the portion designated, without regard to any separation or identification. Similar statutes exist in Maine and Minnesota, and perhaps other States. Doubtless the object aimed at by such statutes would be attained without legislative enactment by the courts of most western States, liolding as they do that the depositor of grain in a warehouse to be mixed with other grain retains title to a portion of the mass. Na- tional Bank of Pontiac v. Langan, 28 111. App. 401 ; Woodward v. Semans, 125 Ind. 3.30, Arthur r. Chicago, Rock Island, & Pac. By., Gl la. G48 ; Ledyard v. Ilibbard, 48 Mich. 421 ; Hall v. Pillsbury, 43 Minn. 33; James v. Plank, 48 Ohio St. 2.'i5 ; Young I'. Miles, 20 Wis. 615, 23 Wis. 043; Bahilly v. Wilson, 3 Dill. 426. See also Bretz v. Diehl, 117 I'a. 603. Cf. South Australian Ins. Co. v. Kandell, L, K. 3 P. C. 101. 122 ■ MORRISON V. WOODLEY. [CHAP. II. A. M. Fleming, Esq. — Dear Sir: Yonr telegram is rec'd, have an- swered ; don't ship. There is no marlict for them now, and every dock is full here ; has been three large cargoes docked to-day, and there is no place to put them, here. I expect a place every day, and will send for tliem at earliest moment. Please see the owners of the dock, and write nie what they will charge to let them laj' longer ; do the best you can for me, as the prospect is that I shall lose mone}- on them nnder the cir- cumstances. You said only a few of them wei'e in the way. Can't those be hauled and piled on the bank ? Please figure as you would were they your own, and write me bj- return mail. If necessary, I will come over or send a man to move them, and if no other way presents, will send a schooner over after them. Please do all you can for me, and the favor will be duly appreciated. Yours truly, Geo. Woox>ley, Chicago, May 7, 1870. 256 S. Water St., Chicago. Subsequently, appellee made some arrangement with the owner of the dock, to avoid the necessit}' of immediate removal of the ties, and paid $20, either for dockage or to provide for the expense of removing part of the ties, if the dock should be needed for other purposes. The 3,000 ties sold to appellee were never selected or set apart for appellee, or separated from the other ties belonging to appellant, and not embraced in this sale. Sometime in September, 1870, the whole of these ties (embracing those sold by appellant to appellee) were taken from this dock and used in the construction of the Grand Rapids and Lake Shore Railroad, without the knowledge or consent of either appel- lant or appellee. Appellant insists, the proof shows it was the intention of the parties that the property in the ties should vest at once in appellee, and that, at least ever after they were put b}' appellee (as appellant insists) in the care of Fleming, appellant had nothing more to do about these ties, and did nothing more about them, and hence was in no wa}- liable to appellee either for the loss of the ties or for the money he received from appellee. To some members of this court this would seem to be the fair conclusion from the weight of the evidence. To others it seems that the Circuit Court was right in coming to a different conclusion, from a fair consideration of all the proofs. It is plain that there is evidence tending to prove, that after all that is relied upon by appellant as vesting the title in appellee, there was a new arrangement made between the parties, by which it was agreed that appellant take back the ties on the dock, and in lieu thereof agreed to let appellee have a like amount of like ties from a quantity of ties be- longing to appellant, at another place, a few miles north of the dock at Muskegon, and also tending to show, that instead of letting appellee aave his 3,000 ties from the latter place, appellant sold and shipped to other parties all the ties he had at that place. The evidence is contradictory- on this branch of the case, and in man^' SECT, v.] ANONYMOUS. 123 other respects, and after a careful examination of all the evidence, we nnd no sufficient ground for disturbing the judgment. Judgment affirmedy SECTION V. Specification of the Goods by Subsequent Appropriation. ANONYMOUS. In the Common Pleas, Easter Term, 1477. [Reported in Year Book, 17 Edward IV., I, 2.] In trespass for a close broken, and corn, barley, and grass taken awa\-. Cateshy. Actio nou, for long before the supposed trespass, the plaintiff and defendant bargained in such a ward in London that the defendant should go to the place where, &c., and there see the said ooi-n, barley, and things aforesaid, and if they pleased him when he saw them, that he should then take the said corn, barley, and grass, paying to the plaintiff 3s. Ad. for each acre, one with the other. And we say that we went there, and that we saw them as aforesaid, and we were well content with the bargain, wherefore we took them, which is the same trespass. Judgment, &c. . . . Brian .... It seems to me for an}- words which have been pleaded in tliis bargain, that it was not lawful for him to take the corn, for it cannot be intended that he meant the defendant should have the corn 1 " The weight of American autliority supports the proposition that when property is sold to he taken out of a specific mass of uniform quality, title will pass at once upon the making of the contract, if such appears to he the intent. Oil in a tank and grain in an elevator may serve as illustrations of this rule. Where, however, the property is sold as part of a mass made up of units of unequal quality or value, such as cattle in a herd, selection is essential to the execution of the contract, and of coiirse the rule can- not apply. Benj. on Sales, 477-.5.31, and cases tliere cited. The storage of oil in tanks and of grain in elevators, although not universal, is the usual and ordinary means em- ]iloyed by large dealers in those commodities, and whilst no custom of that kind, tech- nically speaking, could he estohlished, the usage of the trade and general course of husiness in this country is well known. In view of the necessities which grow out of such u.sage, the American courts have departed from the rule adhered to in England, and have recognized a rule for the delivery of this class of property more in conform- ity with the commercial usages of the country. A distinction is made hetween those cases where the act of separation is hurdeiisome and expensive or involves selection, and those where the article is uniform in hulk and the act of separation throws no ad- ditional hurden on the buyer. In the latter class of cases a tender of too much, from which the buyer is to take the proper (juantity, is a good delivery. Benj. on Sales. 1030, note. See also Kimberly v. I'atchin, 19 N. Y. 130 ; Hutchison v. Commonwealth, 82 Pa. 472 ; Wilkinson v. Stewart, 85 I'a. 255 ; Bretz v. Diehl, 117 Ta. 589.'' Brownfield ^..Johnson, 128 Pa. 254.267. 124 MUCKLOW V. MANGLES. [CHAP. II. without paying the mone}'. But if he had said to him, "Take, and pay when you will," or if he had given him a day for pa3iDent, then I con- ceive well that he could take them, and that would be a good bar if it was pleaded to so much. And further, I say that the property is in the defend- ant by the bargain in the case at bar, and in your cases of the horse and the cloth ; nevertheless, he may not take them without the leave of the other. And he shall have a writ of detinue, but the defendant shall be excused b}' saying he was ready to give it up if the other had paid ; and if he bring an action of debt he shall have the same plea. The case is much as where the property remains all the time in me, and nevertheless during a certain time I cannot take it ; as where I deliver certain sheep to a man to soil his fields for a certain time ; there the property is in me, and still during the time I cannot take them back. For the other point, it seems to me that the plea is not good without showing that he had certified the other of his pleasure ; for it is trite learning that the thought of man is not triable, for the devil himself knows not the thought of man ; but if you had agreed that if the bar- gain pleased you, then you should show it to such a one, then I grant 3'ou need not have done more for it is a matter of fact. MUCKLOW AND Others, Assignees of Rotland, v. MANGLES. In the Common Pleas, June 18, 1808. [Reported in 1 Taunton, 318.] Trover by the assignees of a bankrupt for a barge and other effects. Upon the trial before Mansfield, C. J., at "Westminster, at the sitting?. in this term, it was proved that Royland, who was a barge-builder, had undertaken to build the barge in question for Pocock. Before the woi'k was begun, Pocock advanced to Royland some money on account, and as it proceeded, he paid him more, to the amount of £190 in all, being the whole value of the barge. When it was nearly finished, Pocock's name was painted on the stern. Two da3's after the comple- tion of the work, and before a commission of bankrupt had issued, the defendant, who was an oflBcer of the sheriff of Middlesex, under an execution against Royland, took this barge, which had not then been delivered to Pocock, but gave it up to him under an indemnit}'. The jury found a verdict for the plaintiffs.^ Mansfield, C. J. The only effect of the payment is, that the bank- rupt was under a contract to finish the barge ; that is quite a different thing from a contract of sale, and until the barge was finished we can- not say that it was so far Pocock's property that he could have taken it away. It was not finished at the time when Royland committed the act of bankruptcy ; it was finished only two days before the execution. In the case cited it was necessarily held that the tar was not in the pos- 1 Best, Serjt., now moved that the sum of .£190, the value of the barge, might he deducted from the amount of the verdict, iuasmucJ: as the property had ab.sohitely ~ested in Pocock. SECT, v.] WOODS V. KUSSELL. 125 session of the bankrupt ; otherwise, in every case of tenancy in common with a bankrupt, the act of bankruptcy would vest the entire property of the chattel in his assignees. Heath, J. This is the species of contract which in the civil law is described by the term Do ut facias. It comes within the cases which have been held to be executory contracts, and as such not within the Statute of Frauds, as contracts for the sale of goods. A tradesman often finishes goods, which he is making in pursuance of an order given by oiie person, and sells them to another. If the first customer has other goods made for him within the stipulated time, he has no right to complain ; he could not bring trover against the purchaser for the goods so sold. The painting of the name on the stern in this case makes no difference. If the thing be in existence at the time of the order, the property of it passes by the contract, but not so wliere the subject is to be made. Lawrence, J. I am of the same opinion. No property vests till the thing is finished and delivered. The court reficsed the rule. WOODS AND Another, Assignees of Alexander Paton, a Bankrupt, V. RUSSELL. In the King's Bench, June 26, 1822. [Reported in 5 Barnewall ^ Alderson, 942.] Abbott, C. J., now delivered the judgment of the court. Tliis was an action of trover for a ship, rudder, and cordage, by the assignees of Alexander Paton, a bankrupt, and the facts were shortly as follows : Paton was a ship-builder, and in October, 1818, he entered into a written contract with the defendant to build and complete a ship for the defendant, and finish and launch her in April, 1819 ; and the defendant was to pay for the ship by four instalments of £750 each : the first when the keel was laid ; the second when they were at the light plank; and the third and fourth when the ship was launched. Tlie payments were to be made by bills at two, four, six, and eight months. The first and second instalments were duly paid in March, 1819 ; the defendant appointed a master, who, from that time, superintended the building. In May, 1819, the defendant advertised the ship for charter, and on the 16th of June chartered her, with Paton's privity, for a voyage from Newcastle to Newfoundkind. Before the 26th of June the ship was measured and surveyed, with Paton's privit}', with the intent that the defendant might get lier registered in his name. On tlie 19th June the master entered into the usual bond for delivering up the register ; on the 25th Paton signed the usual certificate of her build, &c., and on the 26th the ship was registered in the defendant's name. On that 126 WOODS V. KUSSELL. [CHAr. II, flay the defendant paid Paton the third instalment. Paton's certificate described t'ne ship as launched, but that was not the case, and Paton's people continued working upon her, and using his timber and materials till the 3d of July. One of the master's apprentices was employed on board by his directions from the early part of June, and on the 30th the master ordered him to sleep on board ; but on that same day Paton committed an act of bankruptcy, upon which a commission afterwards issued. On the 2d of July the defendant and a crew he had hired took possession of the ship ; and his servants, by his direction, took 'from Paton's yard and warehouse a rudder and cordage, which Paton had bought for the ship. On the 4th of July the ship was launched. The fourth instalment was never paid. The ship was incomplete when the act of bankruptcy was committed, and the expense of launching her was borne by the defendant. Upon these facts, the questions proposed to the consideration of the court were, whether the plaintiffs were entitled to recover the value of the ship, in which case the value, subject to a deduction, was to be taken at £3,000 ; or, if not, whether they were entitled to recover the value of the rudder and cordage ; and, should the court be of opinion that they were entitled to neither, a nonsuit was to be entered ; and upon these points alone the case was argued before the court. It has occurred, however, to the court, that a third question arises upon the facts, which neither party could have intended to exclude, which is this : whether, if the plaintiffs are not entitled to recoA-er the whole value of the ship, they may not be entitled to recover to the extent of so much of the fourth instalment as, if the defendant has the ship, he ought to pay. And, upon the first and second questions, our opinion is in favor of the defendant ; upon the last against him. This ship is built upon a special contract, and it is part of the terms of the contract, that given portions of the price shall be paid according to the progress of the work ; part when the keel is laid, part when they are at the light plank. The payment of these instalments appears to us to appropriate specifi- I cally to the defendant the very ship so in progress, and to vest in the defendant a property in that ship/ and that, as between him and the bulkier, he is entitled to insist upon the completion of that very ship, and that the builder is not entitled to require him to accept any other. But this case does not depend merely upon the payment of the instal- ments ; so that we are not called upon to decide how far that payment vests the property in the defendant, because here Paton signed the cer- tificate to enable the defendant to have the ship registered in his (the defendant's) name, and by that act consented, as it seems to us, that the general property in the ship should be considered from that time as 1 Clarke v. Spence, 4 A. & E. 448; Sandford v. Wis]cgins Ferry, 27 Ind. 522, ace. See al.^o Wood V. Bell, 5 E. & B. 772; Seath v. Moore, 11 A. C. 350; Keid v. Macbeth, [1904 j A. C. 223. Clarkson v. Stevens, 106 U. S. 505; Green v. Hall, 1 Houst. 506; Williams r. Jackman, 16 Grav, 514; Briggs v. A Life Boat, 7 Allen, 287; Wright v. Tetlow, 99 Mass. 397; Elliott V. Edwards, 35 N. J. L. 265; Edwards v. Elliott, 30 N. J. L. 449; Stevens r. Shippen, 29 N. J. Eq. 602; Andrews v. Durant, 11 N. Y. 85; Derbyshire's Est., 81 Pa. 18, contra. SECT, v.] WOODS V. RUSSELL. 127 being in the defendant. The defendant had, at that time, paid half what the ship, when complete, would be worth. Paton could not be injured by having the general property in the ship considered as vested in the defendant, because he" would still have a lien upon the possession for the residue of the price ; and we think the legal effect of signing the certificate, for the purpose of having the ship registered was, from the time the registry was complete, to vest the general property in the de- fendant. In order to register the ship in the defendant's name, an oath would be requisite that the defendant was the owner ; and when Paton concurred in what he knew was to lead to that oath, must he not be taken to have consented that the ownership should really be as that oath described it to be? The case of Mucklow v. Mangles, 1 Taunt. ' 318, seems to us to be clearly distinguishable from the present, because! the bargain there for building the barge does not appear to have stipu- lated for the advances which were made ; and those advances do not appear to have been regulated by the progress of the work. Mr. Justice Heath's opinion appears to have been founded on the notion that the builder was not tied down to deliver that specific barge, but would have been at full hberty to have substituted any other he was building, and the builder had done no act expressing an unequivocal consent that the general property should be considered vested in the purchaser. The painting of the name upon the stern, the only act there, pledged the builder to nothing ; it expressed an intention that the barge should be Pocock's, but it did no more. He might change that intention and obliterate the name. But the signing of the certificate here, to the intent that the defendant might obtain a registry in his own name, was a consent that what was necessary to enable the defendant to obtain such registry, should, as between them, be considered as complete ; and that, as the defendant would have to swear that he was sole owner of the ship, the ownership should be considered his. We are, therefore, of opinion, tliat the assignees, who claim under Paton, are bound equally with him ; and as this is not a case within the statute of James, the plaintiffs are not entitled to recover the general value of the ship. And as to the rudder and coi'dago, as they were bought by Paton specifically for this ship, though they were not actually attached to it at the time his act of bankruptcy was committed, they seem to us to stand upon the same footing with the ship, and that, if the defendant was entitled to take the ship, he was also entitled to take the rudder and cordage as parts thereof. Upon the last question, however, we are of oi)inion against the defendant. Though the general ownership was vested in the de- fendant, the possession remained with Paton ; and as the bills for the third and fourth instalments were to be given at the launching of the ship (when launched), Paton, had he completed the ship, would have had a lien upon it till tliose bills were given ; and as the defendant thought fit to take the ship before it was complete, after having given bills for the first three instalments only, we think he ought to have given t bill for so much of the fourth instalment as, according to the value of 128 FRAGANO V. LONG. [CHAP. 11. what remained to be clone, Paton was entitled to receive ; and that, unless what remained to be done would be equal to the whole of the fourth instahnent, his taking the ship, without giving or tendering such a bill was a wrongful taking. We are, therefore, of opinion that, accord- ing to the provision made in that respect in the case, it ought to be referred to Mr. Baiubridge and Mr. Clayton, and such third person as they shall appoint, to take an account of the want of materials stipulated to be provided b}' Paton not on board, and the fair expense of launch- ing, and to enter the verdict accordingl}'. If the want of materials, and the expense of launching, shall amount to £750, the verdict to be entered for the defendant ; if it shall amount to less than £750, a verdict for the difference to be entered for the plaintiff. Judgment accordingly. FRAGANO V. LONG. In the King's Bench, Easter Term, 1825. [Reported in 4 Barnewait ^ Cresswell, 219.] Assu.MPsiT against defendant as owner of the brig or vessel James and Theresa, for negligence in shipping a cask of hardware. At the trial before Hullock, B., at the Lancaster summer assizes, 1824, the following facts appeared in evidence. Mason & Sons, hardwareraen at Birmingham, in April, 1822, received an order from the plaintiff residing at Naples, of which the following is a translation : — Naples, March 28, 1822. Order transmitted by G. Fragano, of this city, to Mason & Sons of Birmingham, through Mr. F. L. for the following merchandise, to be despatched on insurance being effected. Terms to be three months' credit from the time of arrival. The order then specified the goods. In pursuance of this order, the cask of hardware in question marked with the plaintiff's initials was sent Ijy the canal from Birmingham, by Mason & Sons, to Messrs. Stokes, their shipping agents at Liverpool, with directions to forward the same to Naples. An insurance was effected, and the interest declared to be in Fragano. On the 3d of July, Messrs. Stokes received a notice of the arrival of the goods from the canal carrier, and sent their porter, who received the goods from the carrier, and took them in a cart to the quay where the James and Theresa was lying, and delivered them on the quay to the mate of that vessel, who gave the following receipt : Received in good order and condition on board the James and Theresa, for Naples, one cask of hardware. G. F. Samuel Smith, 3Iate From W. & J. Stokes. BECT. v.] FRAGANO V. LONG. 129 The jjoods were left in the custody of the mate, and before thej- were actually put on board, by some accident the cask fell into the water, by which the injury complained of was sustained. Upon this evidence the jury, under the direction of the learned judge, found a verdict for the plaintiff. In Michaelmas Term, a rule nisi for a new trial was obtained, on the ground, first, that no bill of lading having been made out, the property in the goods was never vested in the plaintiff; secondl}', that by the terms of the order, the goods were not to be at the plaintiff's risk until after their arrival at Naples. J*". Pollock was now called upon to support the rule. Cromjyton, contra. Bayley, J. Considering this case apart from the order given oy the plaintiff, it is quite free from doubt either in law or justice. It appears, however, that the plaintiff sent an order to Mason & Sons at Birming- ham, for the goods in question "to be despatched on insurance being effected. Terms to be three months' credit from the time of arrival." But for that order the goods never would have left Mason's warehouse, and when sent, they were marked with the plaintiff's initials. If the goods had been destroyed by lightning on the road to Liverpool, Fragano must have borne the loss. At Liverpool, Stokes & Co., Mason's ship- ping agents, shipped the goods and took a receipt. It is argued that the agent was thereby enabled to maintain an action for the goods, but that Fragano as his principal could not. I think that position is not correct, although there might have been some difficulty had Stokes & Co. .set up an adverse interest. It therefore seems to me, that as the goods left Mason's warehouse by the order of the plaintiff, they were at his risk, and that he can maintain an action for them, unless the form of the order which he gave for them deprives him of that right. It has been urged that the form of the order throws the risk upon the vendor until the arrival of the goods, for they were not to be paid for until three months from that period, and consequently that the arrival was a con- dition precedent to Mason's right to sue for the price. If, however, the goods were not to be paid for unless they arrived, why should the plain- tiff insure them? That shows that the arrival was not considered as al condition precedent to the payment. If the goods arrived, three months from the arrival was to be the period of credit; if they did not arrive, still the plaintiff would be bound to pay in a reasonable time after the arrival became impossible. If this were not so, the insurance would be altogether nugatory, for Fragano could not sue upon it, neither could Mason, the interest being declared to be in Fragano. For these reasons, I am of opinion that the form of the order for the goods docs not vary the case, and that the verdict was properly found for the plaintiff. HoLROYD, J. I also think that the verdict found for the plaintiff was right. It has been argued that neither the mate nor the owner of the vessel was liable to any one but Stokes & Co., from whom the goods were received. But it is a principle of law, that the real owner of the goods, for whom Stokes & Co. were agents, may sue for the loss, although 130 ATKINSON V. BELL. [CHAP. IL the defendant was not informed of his existence. Then it has been urged tliat Fragano had no interest in the goods, and the terms of the order have been adverted to in support of that argument ; but I thinlc that tlie goods became his property as soon as they were sent off by INIason & Co. "When goods are to be delivered at a distance from the vendor, and no charge is made by him for the carriage, the}' become the property of the buyer as soon as the^' are sent off. It was next contended that Fragano was not liable to the vendor unless the goods arrived ; but the order for insurance is decisive as to that. The policy was .to protect Fragano, and shows that he considered he should be the sufferer if the goods were lost on the voyage, which he could not have been, had the arrival of the goods been a condition precedent to his liabilitj' to the vendors. The expiration of three months was to be the time of payment if tlie goods arrived ; if they did not arrive, the law would imply a promise to pa}' in a reasonable time. LiTTLEDALE, J., coucurred. Jiule discharged. ATKINSON AND Others, Assignees of Sleddon, v. BELL and Others. In the King's Bench, Easter Term, 1828. [Reported in 8 Barnewall ^- Cresswell, 277.] Assumpsit for goods sold and delivered, goods bargained and sold, work and labor, and materials found and provided. At the trial before HuUock, B., at the summer assizes for Lancaster, 1827, it appeared that the defendants were linen and thread manufacturers at Whitehaven, in Cumberland. The bankrupt, Sleddon, before his bankruptcv was a machine-maker, residing at Preston, in Lancashire. One Kay, of Pres- ton, obtained a patent for a new mode of spinning flax, and the defend- ants, being desirous of trying the effect of it, on the 12th November, 1825, by letter ordered him to procure to be made for them as soon as possible a preparing-frame and two spinning-frames, in the manner he most approved of. In Januar}', 182G, Kay ordered two spinning-frames and a roving-frame to be made by Sleddon for the defendants, and informed them that he had so done. These machines were formed on Kay's first plan, and completed at the end of March ; and after they had been so completed they lay in Sleddon's premises a month, while two other machines of tliese defendants, intended to be used in the same mills, were altered by Sleddon, under Kay's superintendence ; and when those had been completed to his mind, he ordered the machines in question to be altered in the same manner. They were altered accordingl}', packed in boxes b}' Kay's directions, and remained on Sleddon's premises. On the 23d of June, 1826, Sleddon wrote to the SECT, v.] ATKINSON V. BELL. 131 defendants, and informed them that the two frames had been ready for the hist three weeks, and begged to know by what conveyance they were to be sent. On the 8th of August a commission of bankrupt issued against Sleddon, under which he was duly declared a bankrupt. The assignees afterwards required the defendants to take the frames, but they refused to do so. It was objected on the part of the defend- ants, that the action was not maintainable for goods bargained and sold, because the property in the frames had never vested in the defend- ants. The learned judge was of opinion that the action was not main- tainable, and he directed a nonsuit to be entered, with liberty to the plaintiffs to move to enter a verdict for the price of the machines. A rule nisi having been obtained for that purpose., Brougham and Parke now showed cause. Cross, Serjt., and l^omlinson, contra. Bayley, J. I think the rule for entering a verdict for the plaintiff ought to be discharged. If the declaration had contained a count for not accepting the machines, the plaintiffs might have been entitled to recover ; and I think now that, upon payment of costs, they should be allowed to set aside tiie nonsuit, and add other counts to the declara- tion, and have a new trial. But I cannot say that the property passed to the defendants, so as to enable the plaintiffs to recover on the counts for goods bargained and sold, or for work and labor. It is said, that there was an appropriation of these specific machines by the maker, and that the property thereby vested in the defendants. I think it did not pass. Where goods are ordered to be made, while they are in prog- ress, the materials belong to the maker. The property does not vest in the party who gives the order until the thing ordered is completed. And although while the goods are in progress the maker may intend them for the person ordering, still he may afterwards deliver them to another, and thereby vest the property in that other. Although the maker may thereby render himself liable to an action for so doing, still a good title is given to the party to whom they are delivered. It is true that Kay saw these things while they were in progress, and knew that the bankrupt intended them for the defendants ; yet they might afterwards have been delivered to a tliird person. This case is not affected by the argument that these are patent articles, because they might have been delivered to a third person with Kay's assent. The case of Woods v. Russell, 5 B. & A. 942, is distinguishable. Tlie founda- tion of that decision was, that as by the contract given portions of the price were to be paid according to the progress of the work, by the payment of those portions of the price the ship was irrevocably appro- priated to the person paying the money. That was a purchase of the specific articles of which the ship was made. Besides, there the ship- builder had signed the certificate to enable the purchaser to have the ship registered in his name ; the legal effect of which was held to be to vest the general property in the purchaser. If in this case an execution kad issued against Sleddon, the sheriff might have seized the machines. 132 ATKINSON V. BELL. [CHAP. II. They were Sleddon's goods, althcugh they were intended for the de- feiulants, and he had written to tell them so. If they had expressed their assent, then this case would have been within Rohde v. Thwaites, G B. & C. 388, and there would have been a complete appropriation vesting the property in the defendants. But there was not any such assent to the appropriation made by the bankrupt, and therefore no action for o-oods barfTained and sold was maintainable. Then as to the counts for work and labor, if you employ a man to build a house on your land, or to make a chattel with your materials, the party who does the work has no power to appropriate the produce of his labor and your mate- rials to any other person. Having bestowed his labor at your request on your materials, he may maintain an action against you for work and labor. But if you employ another to work up his own materials in making a chattel, then he may appropriate the produce of that labor and materials to any other person. No right to maintain any action vests in him during the progress of the work ; but when the chattel has assumed the character bargained for, and the employer accepted it, the party employed ma}- maintain an action for goods sold and de- livered, or, if the employer refuses to accept, a special action on the case for such refusal. But he cannot maintain an action for work and labor, because his labor was bestowed on his own materials, and for himself, and not for the person who employed him. I think that in this case the plaintiff cannot recover on the count for work and labor. HoLROYD, J. I think that on the facts given in evidence a verdict might have been sustained on a count for not accepting the machines. I have entertained great doubt during the argument, whether a verdict might not be sustained on the count for work and labor and materials found. I think it will notjie for goods bargained and sold, because there was no specific appropriation of the machines assented to b}- the purchaser, and the property in the goods, therefore, remained in the maker. Then as to work and labor, the work was done, and the labor bestowed on the materials of the maker in manufacturing an article wliicli never became the propert}^ of the defendants. I am of opinion, therefore, that the work was done for the bankrupt, and not for the defendant. LiTTLEDALE, J. I am of the same opinion. Goods bargained and sold will not lie unless there be a sale. Tiiere could not be any sale in this case, unless there was an assent by the defendants to take the articles. Here there was no assent. The property must be changed, to make the action maintainable. If the property had been changed, the maker could not have delivered these machines to any one but the defendants. I think, however, he might have delivered them to another, notwithstanding anything that passed, and that the defend- ants could not have maintained trover against the party to whom the}' were delivered. In the case of an execution or a bankruptcy, these machines must have been ti-eated as the goods of the maker. As to the count for work and labor and materials, the labor was bestowed, 9 SECT, v.] ALEXANDER V. GARDNER. 133 and the materials were found, for the purpose of altimatel}' effecting a sale, and if that purpose was never completed, the contract was not executed, and then work and labor will not lie. The work and labor and the materials were for the benefit of the machine-maker, and not for the defendants. Hule absolute, on jpayment of costs. ALEXANDER and Another v. GARDNER and Another. In the Common Pleas, May 6, 1835. [Reported in 1 BingJiam's New Cases, 671.] Assumpsit for goods bargained and sold under the following circum- stances : — The plaintiffs, merchants in London, and agents for Irish houses in the sale of butter, being in expectation of a cargo from Murph}-, of Sligo, entered, b3' means of their broker, into the following contract with the defendants : — London, October 11, 1833. Sold to Messrs. "William Gardner & Son, for account of Messrs. Alexander & Co., 200 firkins Murph}' & Co.'s Sligo butter, at 71s. 6d. per cwt. free on board for first qualit}' ; 4s. and 6s. difference for inferiors. Payment, bill at two months from the date of landing. To be shipped this month. An average for weights and tares within six days of land- ing, if required. On the 11th of November, the plaintiffs received from Murphy the in- voice and bill of lading of these butters ; and also the intelligence that, owing to there having been no ship in the port of Sligo bound for Lon- don, the butter had not been shipped till the 6th of November. This circumstance was immediatel}' communicated to the defendants, who at first refused to abide by the contract, on the ground that the but- ters were to have been shipped in October. In a little time, however, they abandoned their objection, and consented to retain the invoice and bill of lading which had been delivered to them on the 12th of November. The invoice which described the butters in detail as to weight, number of casks, &c., was addressed to the plaintiffs, but upon handing it over, their name had been struck out, and the name of the defendants substi- tuted, as is usual in the trade. The bill of lading described the casks b}' their marks and several quantities, and directed them to be delivered to the plaintiffs. In December, 1833, the greatest part of the butters was lost by ship- wreck on the coast of Galway, and a small part of them arrived in a damaged state ; wlioreupon the defendants, not having effected any insurance, refused to pay. 134' ALEXANDER V. GARDNER. [CHAP. II. At the trial before Tindal, C. J., it was contended on tbeir part that, under tlie circumstances above stated, the action for goods bargained and sold did not lie ; and that tlie plaintiffs, in order to recover, should have declared specially on the contract of the 11th of October, alleging and proving that the goods had been shipped in October, and duly landed ; since, according to the contract, payment was not to be made till two months after landing. The jur}- found tliat the condition for shipping in October had been waived by tiie defendants, and returned a verdict for £-114, the contract price of the butters. Talfourd, Serjt., pursuant to leave reserved at the trial, obtained a rule nisi for setting aside this verdict, and entering a nonsuit on the ground above stated. He relied mainly on Simmons v. Swift, 5 B. & C. 857, where the owner of a stack of bark entered into a contract to sell it at a certain price per ton, and the purchaser agreed to take and pay for it on a da}- specified, and a part was afterwards weighed and delivered to him ; it was held, tliat the property in the residue did not vest in the purchaser until it had been weighed, that being necessary in order to ascertain the amount to be paid ; and that, even if it had vested, the seller could not, before that act had been done, maintain an action for goods sold and delivered. From that case it followed that an action for goods bargained and sold will not lie, unless the property in the goods passes to the purchaser at the time of the bargain. But so far was the property here from passing to the defendants at the time of the bargain, that at that time the goods were not in the plaintiffs' hands, or, for aught that appeared, in existence. And the principle established by Goss v. Lord Nugent, 5 B. & Adol. 58, that when the time for delivery is fixed by a written contract, it cannot be extended by oral agreement, afforded a strong argument to show that the plain- tiffs should have set out in their declaration the special circumstances of their demand. Bompas, Serjt., and Martin showed cause. Talfourd and Kelly in support of the rule. TiNDAL, C. J. The question in this cause is, whether an action for goods l)argained and sold is maintainable against the defendants. Tliey contend that such an action does not lie against them, but that under the circumstances of the case, the plaintiffs should have declared speciall}-. The original contract was made on the 11th of October, 1833, in which contract it is stated that the plaintiffs sold to the defendants 200 firkins of Sligo butter, free on board, at 71s. 6c?. per cwt. ; that the goods were to be shipped in the course of that month, and that pay- ment was to be by a bill of exchange, payable two months after the landing of the goods. Upon this contract three objections have been raised to the action for goods bargained and sold. First, that the butters were not in the possession of the plaintiffs at the time of the contract. SECT, v.] ALEXANDER V. GARDNER. 135 Seconclly, that they weie not shipped in October as the contract re- quired ; and, Thirdly-, that as the payment was to be at two months after the land- ing of the goods, and as the goods were never landed, such payment could not be required. Notwithstanding these objections, I think the contract was to pay for goods bargained and sold, and that the declaration to that effect is in the proper form. And I agree that tlie plaintiffs must show that the prop- erty in the goods passed to the defendants by the contract ; for, unless it did, the goods were not bargained and sold to them. But as to tlie first objection, if the goods were ascertained and accepted, before the action was brouglit, it is no objection that they were not in the possession of the plaintiffs at tlie time of the contract. In Rohde v. Thwaites, 6 B. »fe C. 388, the vendor, having in his warehouse a quan- tity of sugar in bulk, agreed to sell twenty hogsheads : four hogsheads were delivered ; the vendor filled up and appropriated to the vendee sixteen other hogsheads ; informed him that they were i-eady, and de- sired him to take them away ; the vendee said he would take them as soon as he could ; and it was held that the appropriation having been made by the vendor and assented to by the vendee, the six- teen hogsheads thereby passed to the latter; and that their value might be recovered by the vendor under a count for goods bargained and sold. Here it is impossible to say that the goods were not ascertained and accepted before the action was brought ; for the quantity', quality, and price were all specified in the invoice ; and the bill of lading was regularly indorsed to and accepted by the defendants. But then it is said that the shipping of the goods in October was a condition precedent to any claim on the defendants. If the defend- ants had in the first instance repudiated the bargain on that ground, it is true no action would have lain against them. But it is found by the jury that they waived the objection ; and this being only a parol con- tract, if the party waives the condition he is in the same situation as if it had never existed. The third objection to the i)lalntiffs' recovery is, that the butters were to be paid for by a bill at two months after landing. But the ob- ject of tliat stipulation was merely to fix the time of payment, and not to make the landing a condition precedent. For that point it is enough to refer to the decision in Fragano v. Long. The present case, therefore, is brought within the result of all the decisions, as stated by Serjeant Williams, in the note 2 Wms. Saund. 269^. Here the action was not brought till long after the two months which would have succeeded the landing of the goods, if they had arrived in the ordinary course. The plaintiffs, therefore, being in the situation of one who has parted with his goods, and the defendants of one who has received them upon an engagement to pay, the action will lie, and this rule must be discharged. 136 ALEXANDER V. GARDNER. [CHAP. II. Park, J. I entirely concur. The condition for shipping the goods in October having been waived, the question is, whether an action lies for goods bargained and sold ; and that turns on the question whether or not tliere has been an acceptance of the goods by the defendants. I think there has, and that an action might have been maintained even for goods sold and delivered ; but it is sutHcient to say that the right to sue for goods bargained and sold is complete. The defendants' argument turns on the principle, that goods sold remain at the risk of the vendor, till everything is done to complete the contract : Hinde v. Whitehouse, 7 East, 558 ; or till a specific appropriation has taken place. But that having been effected here by the transfer of the bill of lading, the case falls within the principle of Rohde v. Thwaites and Fragano v. Long. We have been pressed with the authority of Simmons v. Swift, There the owner of a stack of bark entered into a contract to sell it at a cer- tain price per ton, and the purchaser agreed to take and pay for it on a day specified ; and a part was afterwards weiglied and delivered to him : it was held that the residue did not vest in the purchaser until it had been weighed, that being necessary in order to ascertain the amount to be paid ; and that, even if it had been vested, the seller could not, before that act had been done, maintain an action for goods sold and delivered. In that I entirely' concur. But see what the case was in Rohde V. Thwaites. There the vendor, having in his warehouse a quantity of sugar in bulk, agreed to sell twenty hogsheads : four hogsheads were delivered to the vendee ; the vendor filled up and appropriated to the vendee sixteen other hogsheads, infoi'med him that they were read}', and desired him to take tliem away. The vendee said he would take them as soon as he could. It was held, that the appropriation hav- ing been made and assented to, the property' in the sixteen hogsheads passed to tlie vendee, and that their value might be recovered by the vendor under a count for goods bargained and sold. And the argu- ment that the arrival and landing of the goods was to be a condition precedent to pa3'ment, is answered by Fragano v. Long. Tliere the vendee, resident at Naples, sent an order to the vendors, hardwaremen at Birmingham, " to despatch to him certain goods, on insurance being effected ; terms, three months' credit from the time of arrival." The vendors despatched the goods b}' the canal to Liverpool, and effected an insurance, declaring the interest to be in the vendee : at Liverpool the goods were delivered by the agent of the vendors to the owner of a vessel bound to Naples, through whose negligence the}' were much damaged: it was held, that the propert}' in the goods vested in the vendee as soon as they were despatched from Birmingham ; that the terms of the order did not make the arrival of the goods at Naples a condition precedent to a liability to pay for them ; and that the vendee might therefore maintain an action for the injury done to the goods through the negligence of the ship-owner. That case, therefore, and the case of Rohde v. Thwaites, entirely warrant our present decision. SECT, v.] TRIPP V. ARMITAGE. 137 Gaselee, J. The chief justice and m.y brother Park having gone so fully into the oase, I shall only observe that here the invoice specifies the weight and price of all the goods. BosANQUET, J. I think that this was a contract executed, and that therefore the plaintiff has properly declared for goods bargained and sold. It is not necessary for the support of such an action that the goods should be actually in the possession of the vendor. Here he was entitled to the possession, and has done all that was required on his part to render the transfer effectual. It is said he should have declared specially, showing the performance of the condition precedent as to the time of shipping, or a waiver of it in writing. If the contract contain- ing the condition had been by deed, that doctrine might have applied, but this was a parol contract, and the condition might be waived with- out a writing. A contract must be declared on according to its legal effect ; and the effect of all the circumstances here is, to render it a con- tract without a condition. The objection that the arrival of the goods was a condition precedent to payment, is answered by the case of Fragano v. Long, where it was decided that the property in the goods vested in the vendee as soon as they were despatched from Birming- ham ; that the terms of the order did not make the arrival of the goods at Naples a condition precedent to the vendee's liability to pay for them ; and that he might therefore maintain an action for the injury done to the goods through the negligence of the ship-owner. Here, the time for arrival of the goods having long since elapsed, the time for payment must also be arrived if there was to be any payment at all, and that there was to be a payment is decided by Fragano v. Long. Hule discharged- TRIPP AND Others, Assignees of Bennett, a Bankrupt v. ARMI- TAGE AND Others. In the Exchequer, Hilary Term, 1839. [Reported in 4 Meeson Sj- Welsh i/, 687.] Trover for deal sashes, linings, shutters, boards, and other building materials. Pleas, first, except as to certain doors, linings, boards, &c., specified in the plea, not guilty ; secondly, as to the causes of action to which the first plea was pleaded, that the plaintiffs were not pos- sessed of their own property as assignees of the goods and chattels to which the first plea was pleaded, or any part thereof, in manner and form, &c. ; thirdly, as to the causes of action relating to the conversion of the goods and chattels particularly mentioned in and excepted by the first plea, payment into court of £129, which the plaintiffs took out of court in discharge of those causes of action. At the trial before Lord Abinger, C B., at the last Gloucestershire Assizes, the following appeared to be the facts of the case : — 138 TRIPP V. ARMITAGE. [CHAP. II. In the year 1837, a company' was formed for the erection of a new hotel in Cheltenham, and a deed was executed for regulating the affairs of the compan}', b}' which the defendants were appointed trustees. Advertisements having been issued for tenders for building the hotel, the bankrupt, Bennett, who then carried on business as a builder and timber-mercliant in Cheltenham, sent in a tender, and entered into a written contract with the defendants, therein described as trustees of the Cheltenham Hotel Company, dated 3d March, 1837; by which, after reciting that Messrs. Churchill & Mallory had agreed to do the smith's and ironmongery work, and Mark Barrett the painting, plumb- ing, and glazing, b}' agreements of even date therewith, and that Ben- nett had agreed to do all the work, save as aforesaid, at the price of £15,381 85. 4d. ; it was witnessed that Bennett thereby covenanted for himself, his heirs, executors and administrators, with the defendants, that he would build the hotel (except as aforesaid), and render the same fit for habitation, to the satisfaction of R. W. Jearrad (the archi- tect employed by the defendants), by the times therein mentioned (enumerating various times by which specified portions of the work were to be completed) ; that, should Bennett neglect to complete an}- one portion of the work by the time therein appointed, or several portions of the works by the times therein respective!}' appointed, he should for- feit and pay the sum of £250 as liquidated damages, and the defendants should be entitled to set it off, &c. The agreement then contained the following clause: "And further, that, should the said T. H. Bennett, his executors or administrators, at any time or times, omit to go on with, or neglect to do the said works, matters, and things hereby agreed to be done by him, so expeditiously as he might do in the judgment of the said R. W. Jearrad, or the said architect of the said company for the time being, or in case the said T. H. Bennett should become bank- rupt, or insolvent, or being arrested should go to gaol, before the said work should be completed and finished, then and in an}' or either of such cases, it should and might be lawful to and for the said trustees, their heirs or assigns, to take possession of the work then already done by the said T. H. Bennett, and to avoid and put an end to that agreement ; and thereupon the several clauses and agreements therein contained on the part of the said trustees should be absolutely null and void, to all intents and purposes whatsoever; and further, that the said trustees should pay to the said T. H. Bennett, his executors or administrators, or his or their assignee or assignees, as the case might be, so much money, and only so much money, as the said R. W. Jearrad, or other, the architect for the time being of the said company, should adjudge to be the fair worth of the work actually done and fixed by the said T. H. Bennett, his execu- tors or administrators, to the hotel, as compared with the whole work to be done for the said price of £15,381 8s. 4cl" Proviso, that should the trustees require any additions to or alterations in the buildings, or the mode of doing the same, and should by writing under the hand of one of them, countersigned bv Jearrad, direct the same to be done, then SECT, v.] TRIPP V- ARMITAGE. 139 such additions or variations should be made, but should not in any respect vacate, alter, annul, or make void the agreement, but the dif- ference caused by such additions or variations should be valued by Jearrad, and should be paid to or allowed by Bennett, as the case might be. The trustees then covenanted to pay the money by instal- ments, at certain dates corresponding with the times at which the speci- fied works were to be performed. There was also a proviso, making the doing of the works conditions precedent to payment, and tlie architect's certificate indispensable. Certain additional works were contemplated as the building proceeded, wliicli Bennett also undertook at stipulated prices. Previously to the month of September, 1837, Bennett received the five first instalments as they became due, upon a certificate of Jear- rad, the architect, that the work had been done. In that month, Ben- nett, being pressed for money, applied to Jearrad for advances, in anticipation of the instalments not then due ; and being required to give in a statement of the works done in part of the contract, he furnished an account, containing, among other items, the following: "Bricks on the ground {i. e. on the hotel premises), £140 ; joiner's work prepared, £1,000." The trustees thereupon agreed that certain advances should be made to Bennett, on the security of all the materials which were or should be brought by him upon the premises during the works, and he consequently obtained certificates fiom time to time from Jearrad, under which he received several sums of money for work not actually done. During the progress of the building, one TurnbuU was the clerk of the works, and the course of business was for him to inspect every article that came in under any of the contracts, and none were received except on his approval. Some sash-frames for the windows had been sent in by Bennett, and approved of by Turnbull, and, before the bankruptcy, had been again taken from the premises to a workshop of Bennett's, for the purpose of having affixed to them some iron pulleys, which had been supplied to the defendants by Churchman & Mallory, under their con- tract. At the time of the bankruptcy, these sash-frames, with the pulleys affixed to them, were at Bennett's workshop. On the 22d of November, Bennett committed an act of bankruptcy, on which a fiat subsequently issued, and the plaintiffs were appointed his assignees. Between the 22d and the 25th of November, the sash- frames, to which the pulleys had been so attached, and also the various articles excepted out of the first plea, were delivered upon the premises of the company. There were also on the hotel premises, at the time of the bankruptcy, a large quantity of other materials which had been sent in from time to time by Bennett, and which had been approved of by Turnbull, and were in a prepared state, but not yet fixed. On taking an account between the value of the work actually done and fixed at the time of the bankrui)lcy, and the money received by Bennett up to that time, it appeared that he had been paid in advance about £800 beyond the value of such work. The present action was brought by the assignees to recover the value of the materials which were upon the 140 TRIPP V. ARMITAGE. [CHAP. 11. premises, unfixed, at the time of the bankruptcy, of the sash-frames, and of the other materials delivered on the premises after the bankruptcy. These last, however, were satisfied by the £129 paid into court and taken out by the plaintiffs. On the materials delivered before the bank- ruptcy the defendants claimed a lien, as being the security on the faith of which the advances had been made by Jearrad to the bankrupt; and the}- also claimed the property in the sash-frames, as being specific articles which had been appropriated by them, and approved on their part by Turnbull, and to which their pulleys had been attached. The onlv evidence of a conversion of the sash-frames was a demand and refusal, the demand not being limited in terms to the wood-work of the frames. Tlie value of the frames with the pulleys was £9 5s. ; of the pulleys, £1 9s. The learned judge directed tlie jury, that if the advances were made to Bennett on the understanding and agreement that the materials brought upon the premises should be considered as a pledge for those advances, the}- should find a verdict for the defendants ; and he intimated an opinion that the sash-frames had been so far specifically appropriated to the defendants as to prevent the plaintiffs from recov- ering in respect of them. The jurj- found a verdict for the defendants, and the learned judge gave the plaintiffs leave to move to enter a ver- dict for £9 5s., the value of the sash-frames. Maiile and Greaves sliowed cause. M. V. Richards (with whom were Talfourd, Serjt., and W. J. Alex- ander)., in support of the rule. Lord Abinger, C. B. I have been much disposed, I confess, to endeavor to find some possible ground for sustaining the verdict, be- cause I consider this to be one of the hardest cases that ever .occurred. Tlie defendants undoubtedly intended to pa}' monej- into court to cover all matters on which there was any doubt, and to rest only upon a defence which was perfecti}- clear; and on a great part of their case, amounting to several hundred pounds, they did make out a clear de- fence ; but there unfortunately occurred this little omission with respect to these sashes, which has given rise to the whole question now in dis- pute. The case has been very abl}- and ingeniouslj' argued by Mr. Maule, but I cannot at all adopt the first ground he has taken, nameh', that b}- reason of the approbation of Turnbull, the clerk of the works, and the application of the pullej-s sent by the defendants to be fixed to the sashes, the property was appropriated to the defendants. My rea- son for not acceding to that argument is shortly this : that this is not a contract for the sale and purchase of goods as movable chattels ; it is a contract to make up materials, and to fix them ; and until they are fixed, by tlie nature of tlie contract the property will not pass. It is said that although the contract be general in the first instance, yet it. may become, b}- circumstances, specific ; that although a man ma}' agree to buy goods generally, and on the part of the vendor tlie con- tract may be complied with by supplying any goods he chooses of the description named, yet, if particular goods be afterwards pointed out SECT, v.] TRIPP V. ARMITAGE. 141 and designated between the parties, the contract is tbereb}- modified, and becomes then an undertaking to supply the specific goods, the property in which thereby passes to tlie vendee. But this is not a con- tract to purchase goods at all, — it is a contract for several works to be done. Wherever the property of the goods passes b}- the contract, and has become vested in the purchaser, if the}- are destroyed by any accident, the purchaser would be responsible. But I think we cannot say, that, if these sashes had been destroyed, the purchasers, that is, the defendants, would have borne the loss ; they are not bound by the contract to paj' for anything till it is put up and fixed ; and if destroyed by fire, or in any way abstracted from the premises, without the fault of the builder, he would surely have a right to recover the value of such goods from the defendants. I think, therefore, that from the nature of this contract, the property remained in the bankrupt, although the goods had been approved of b}' the defendants. That approval does not mean the assent of the parties to take the article and pay for it at once, but merely the approval of it as a proper thing to be put up. ... Parke, B. I eutirel}' concur. With respect to the first point, which has been insisted upon at so much length and with so much ingenuity and ability by Mr. Maule, I think the answer is a very short one. I admit that the cases which have been cited and commented upon by him are perfectly good law : but there is one most material distinctiun between them and the present, viz., that in all those cases there was a contract with respect to a particular chattel, which by the contract was to become the property of the person taking it, under certain circum- stances ; but in this case there is no contract at all with respect to these particular chattels, it is merely parcel of a larger contract. The contract is, that the bankrupt shall build a house ; that he shall make, amongst other things, window-frames for the house, and fix them in the house, subject to the approbation of a surveyor; and it was never in- tended by this contract, that the articles so to be fixed should become the property of the defendants, until they were fixed to the freehold. It is said that the approbation of the surveyor is suflicient to consti- tute an acceptance by tlie defendants ; but that approbation is not given eo animo at all ; it is only to ascertain that thej- are such mate- rials as are suitable for the purpose ; and notwithstanding that approval, it is only when they have been put up, and fixed to the house, in per- formance of the larger contract, that they are to be paid for. That appears to me to be a suflicient answer to the first and principal point which has been argued by INIr. Maule against the rule. . . . GuRNKY, B. I am of the same opinion. It is clear, upon this contract, that the property in the frames had not passed out of the bankrupt to the defendant^,. They had therefore no right to take possession of these frames ; they had only a right to sever the pulleys from the frames, which they have not done, but have possessed them- selves of both ; and they make their own default in not severing theono 142 WILKINS V. BROMHEAD. [CHAP. II. from the other, the orouiul of their refusal to deliver up that vvhieh the assignees were entitled to. link' absolute to enter a verdict on so much of the declaration as a2:>plled to the sash-frames ; damages^ £7 16s. WILKINS V. BROMHEAD and HUTTON. In the Common Pleas, January 23, 1844. [Reported in 6 Manning 1. It is argued that the captain must be answerable at all events in this action, because he signed the first bill of lading to the order of Thompson and Fairbrothcr, who indorsed it to the plaintiffs. I tiiink it very material to consider who Fairbrothcr was. He had no interest in these goods ; and he was known to all the parties to be the agent of Thompson. Tlien P^iirbrother must be considered as Thompson him- self. The bills of lading wei-e all to the order of Thoin[)son ; he had then the absolute control over the goods, and might have unshipped them if he had so pleased. So that they are not like goods consigned to a third person, for they remained under the power of Thompson all the time till he indorsed the bills of lading. If Thompson and Fair- 186 WALLEY V. MONTGOMERY. [CHAP. II. brother are to be considered as the same person, it is the same as if the bills of lading were to the order of Thompson alone. Then the question is, who has the prior right under him? It was said by the plaintiff's counsel, that the defendant was the agent of France and Companj^, and that they must be taken to know what he did ; but that makes against the plaintiffs ; for at the time when Thompson assigned the two bills of lading to Coppell and Gold- win, the defendant knew that he had the other in his hands, and could not therefore have assigned it to any other person. The defendant then acted fairly, and it could onlj' happen by the subsequent miscon- duct of Thompson, namely, by his afterwards indorsing one of the bills of lading to another party, that any difficulty could arise. Then the question is, whether this bill of lading, being made in favor of Thompson and Fairbrother jointly, can be distinguished from one made in favor of Thompson only? I think it cannot, because Fair- brother was known to the parties to be the agent of Thompson. As therefore this transaction is to be considered in the same light as if all the bills of lading had been made to the order of Thompson alone, how does the question stand as between the plaintiffs and France and Company ? Both parties claim under Thompson : but France and Company have the first legal right ; for two bills of lading were first indorsed to them, and the letter which conveyed the other bill of lading to Fairbrother apprised him at the same time of this indorsement. Rule discharged. WALLEY V. MONTGOMERY. In the King's Bench, May 21, 1803. [Reported in 3 East, 585.] In trover for a cargo of timber of the value of above £800 ; it appeared in evidence at the trial before Lord Ellenborough, C. J., at the sittings in London after last term, that the plaintiff, a merchant at Liverpool, gave an order for the timber to Schumann & Co., merchants, residing at Memel ; in pursuance of which Schumann & Co. informed the plain- tiff by letter of the 1st of May, 1802, that the}' had chartered on his account the ship "Esther," Captain Rose, of Liverpool ; and on the 15th of May they wrote him another letter, enclosing him the bill of lading and invoice of the timber after mentioned, and saying that they had sent the charter-party in a letter which Captain Rose would deliver,, and advising the plaintiff further that they had drawn on him certain bills at three months for the value of the timber. The invoice enclosed was of this tenor : — Memel, 4th May, 1802. Invoice of a cargo of timber shipped by order and for account and risk of Mr. T. "Walley at Liverpool, in the "Esther," Captain Rose. SECT. VI.] WALLEY V. MONTGOMEEYo 187 And the bill of lading was dated 14th of May, 1802, and mentioned the shipping of the cargo in the usual form : " to be delivered unto order or assigns, he or they paying freight for the said goods according to charter-party ; " which was signed by Rose, the captain, and indorsed in blanlc by Schumann & Co. Tbe'diarter-party, though produced, could not be proved at the trial for want of the subscribing witness. Schumann & Co. sent another bill of lading of the timber to the defend- ant at the same time, who appeared from the circumstances to have acted as their agent, though he did not avow himself to be acting in that cliaracter at the time ; by virtue of which bill of lading the defend- ant obtained the delivery of the timber from the captain before the plaintiff was apprised of the circumstance, or had made any demand of the same under his own bill of lading ; but on the 21st of June, two days after the arrival of the timber, finding that the defendant had ob- tained possession of it, he applied to him, offering to accept tlie bills drawn on him by Schumann & Co. and demanding the timber, wliich the defendant refused, unless the plaintiff would pay for it immediately. The plaintiff, however, declined such a mode of payment, insisting on the mode stipulated for by Schumann & Co. in their letter to him, by giving his acceptances at three months ; in consequence of which the defendant retained possession, and afterwards sold the cargo under the authority of Schumann & Co. Upon the refusal of the defendant, the plaintiff demanded the cargo from the captain, telling him that he was ready to perform his part of the contract ; but the captain said tliat he had before delivered it to the defendant, conceiving that he acted by the authority of the shippers : but there was no proof of any tender of the freight having been made to the captain, for want of which the plain- tiff was nonsuited. Gibbs and I'ark showed cause against a rule for setting aside the nonsuit and granting a new trial. JEJrskine, Garrow^ and Scarlett^ contra. Lord Ellenborough, C. J. If it were not for one piece of evidence which was mentioned late in the cause, and to which my attention was not before particularly directed, I should still be inclined to tbink that the plaintiff was not entitled to recover; and that is the invoice, by which it appears that the goods were shipped for account and at the ' risk of the plaintiff: that is a material piece of evidence on a question, in whom was the property of the goods at the time of their arrival here ; whether then vested in the plaintiff, subject to a defeasance in case of the non-performance by him of certain conditions on which the consignment was made, or wliether to vest in him at a subsequent time on performance of those conditions? Laying the invoice out of the question, I should still have been of the same opinion as before upon the letter of advice and the bill of lading, that they were conditional. Two things were required of the plaintiff to be done : first, the accept- ance of the bills drawn on him at three months, which having been tendered to be performed on his part must be taken as done ; secondly, 188 OGLE V. ATKINSON. [CHAP. II. the payment of tlie freight, which was neither made nor tendered. I will not consider whether the defendant were the agent of Schumann & Co. ; for whether so or not, he cannot be considered as a wrong-doer if he have obtained possession of the cargo under a competent bill of lading and upon a performance of the conditions, which the plaintiff neglected to perform. If, having no notice of a better title, he were not a wrong-doer when he received the goods, and he has paid the freight and performed the conditions required of him, the goods cannot | be taken out of his hands without paying those charges. But taking him to be the agent of Schumann & Co. and bound by their engagement, yet he had a right in their name to stipulate for the performance of the two conditions on which the shipment and delivery of the goods were to be made to the plaintiff, namely, the acceptance of the bills, and the payment of the freight. And though the defendant cannot object to the non-acceptance of the bills which was offered to be done by the plaintiiT, yet he may make his stand in point of law on the non-performance of the other condition, without which the plaintiff could not be entitled to recover if the question rested there. But here T think the invoice vested I tlie propert}- in the plaintiff; for if there had been a loss at sea, that loss must have been borne by him. Then if the property were vested in him, subject only to a defeasance if he did not perform the conditions required of him, I think the plaintiff would be entitled to recover. The doctrine in the case of Lempriere v. Paslej' onh' applies to the case of a mere wrong-doer possessing himself of the goods of another without authorit}-, and paying freight for them : but without the invoice in this case the act of the defendant even as the agent of Schumann & Co. would not have been tortious, the plaintiff not having performed the conditions required by the letter of advice and the bill of lading : the invoice, however, vested the property in him. Mule absolute? OGLE y. ATKINSON and Another. In the Common Pleas, November 15, 1814. [Reporietl in 5 Taunton, 759,] Trover for a quantity of hemp and flax. The cause was tried before Mansfield, C. J., at the sittings after Michaelmas term, 1813, and a verdict was found for the plaintiff, subject to a case. In 1809, the plain- tiff consigned wines to Smidt & Co. at Riga, for sale on his account, and next year ordered them to purchase for him the hemp and flax in question. In April, 1810, the plaintiff sent his own ship, the Bremen packet, to receive the goods so ordered. On her arrival at Riga, the captain received from Smidt & Co. the goods in question, with others, 1 Grose, J., delivered a concurring opinion, and Lawrence and Le Blanc, JJ., also concurred. SECT. VI.] OGLE V. ATKINSONo . 189 on behalf of the plaintiff, and as the plaintiff's own goods, which Smidt & Co. stated to the captain that they were. These goods not fully loading the shii), Smidt & Co. procured other goods to be shipped on freight; the captain, by agreement with tlie plaintiff (his owner), was to have £15 per cent primage upon the ship's homeward freight, to be estimated as well upon the plaintiff's own goods as upon those which were actually to pay freight, the rate of which last was £10 per ton, but Smidt & Co. required the captain to estimate the freight upon the goods received for the plaintiff at £8 per ton only. The captain objected to this distinction, but Smidt & Co. insisted that his owner was entitled, that the freight upon the goods belonging to the plaintiff should not be estimated at the same rate which the other goods were to pay ; at length the captain consented. Before the ship left Riga, Smidt & Co. wrote a letter without date to the plaintiff, apprising him of having shipped the hemp and flax in question by the Bremen packet, and stating that they enclosed the bills of lading and invoices of that shipment, for which they debited the plaintiff's account, and requested that, being found right, the plaintiff would have them noted in conformity therewith. In that letter were enclosed four invoices, dated 18-30 June, expressing the flax to be shipped on board tlie Bremen packet, for the account and the risk of the plaintiff; and Smidt & Co., after enumerating all tlie charges on the cargo and ship, therein charged to the plaintiff a commission of two and a half per cent on the amount of the goods and charges. In a letter of 15-27 June, tliey promised to furnish the plaintiff with the vouchers of the whole shipment ; and in another mentioned having before sent him the bill of laduig and invoices of those shipments, performed on the plaintiff's account on board the Bremen packet, and they annexed the duplicate of the vouchers. After the captain had received the goods, he was requested by Smidt & Co. to sign a bill of lading for them, de- liverable to or his order, for which he was to receive freight at the rates therein specified. The captain objected to sign the bills of lading with a blq,nk for the name of the consignee, until Smidt & Co. assured him that was of no consequence, as the goods were to be deUvered to his owner, upon which he signed it. The first-mentioned letter to the plaintiff, whicli contained the invoices and bill of lading, was sent by Smidt & Co. to Lehr, their agent in this country, in a letter dated Riga, 4-16 June, wherein they stated respecting the Bremen packet, that they should make out Ogle's bills of lading to order, that in case of his not accepting the drafts, Ruckers might become possessors of the bills of lading ; and after stating the amount of the goods loaded for the plain- tiff, and charges, and that there would be very little of the proceeds of his wines remaining at his disposal, they added that tliey drew on him only £2,500, which bills they remitted to Messrs. Ruckers. They con- ceived that sum to be the balance due to them, which the plaintifl' dis- puted. In a letter 2-14 July, Smidt & Co. instructed Lehr to take the necessary measure, that in case Smidt & Co.'s drafts of £1,300 and £1,200 at three monllis, drawn on the 4-lG June, were not accepted, he 190 OGLE V. ATKINSON. [CHAP. H. should otherwise dispose of the bills of lading he had in hand, and let Messrs. Kuckcrs rocoive the goods and dispose of them. Lehr, in pur- suance of these instructions, called upon the plaintiff before the ship arrived, and delivered to him the letter enclosing the four invoices, and stated that Smidt &, Co. had drawn two bills upon him, the one for £1,200, the other for £1,300, which were in tlie hands of Messrs. Ruck- ers, and requested the plaintitf would accept them ; the plaintitf refused, and Lehr in consequence indorsed the bill of lading to Messrs. Ruckers. On the ship's arrival in England, before any of the goods had been de- livered to the plaintiff, Messrs. Ruckers claimed the goods as indorsees of the bill of lading, but the captain refused to deliver to them, and de- livered the goods to the plaintiff, who deposited them with the defend- ants as warehouse-keepers on his account. He had since demanded them back from the defendants, and tendered them the amount of their charges, but they had refused to deliver them. There was no tender of any freight for the goods. Smidt & Co. were alien enemies at the time of the shipment and trial. The plaintiff had obtained a license from the crown to import these goods, upon which license Smidt & Co. had, before the ship left Riga, indorsed that the goods were shipped on Brit- ish account. If the plaintiff were not entitled to recover the value of the goods so deposited with the defendants, a nonsuit was to be entered. Vaughaji, Serjt., for the plaintiff. Lens, Serjt., for the defendant. GiBBS, C. J. This is an action by Ogle against Atkinson, into whose hands Ogle had delivered goods, brought for the purpose of recovering from them the value of the goods, which they refuse to re-deliver, insist- ing that the property of the goods is in Smidt & Co., from whom they have had notice to detain them. There are two preliminarj' points made by the plaintiff: first, that the defendants cannot refuse to deliver up the goods to the plaintiff from whom thej' received them ; but, if the property is in others, I think they may set up this defence. Secondly, It is said. Ogle has a lien for freight ; he might have had such a lien^ but if he wrongfully gets the goods into his hands on a claim of prop- ert}', he cannot afterwards set up a lien for freight. This brings us to the true question, which is, in whom the property is vested. It is true that the goods might have been delivered aboard the ship on the terras on which the defendant contends they were delivered ; and if they had been, no doubt the plaintiff could not have obtained the goods, without accepting the bills ; but were they so delivered? Smidt & Co., in ttieir letter to Ogle, never make mention of an}- bills to be accepted b\- Ogle. No doubt, a delivery on board this ship was an absolute delivery to Ogle, unless qualified. Does the case, there fox'e, state an}' such quali- fication? The case states that the captain received them as the plain- tiff's own goods, which means his own goods absolutel}' ; not with any qualification ; and Smidt & Co. represent them to the captain to be goods of Ogle, and as such they are delivered. If Smidt & Co. had said, We deliver the goods to you, to be the goods of Ogle if he accepts cer« SECT. VI.] WILMSHUEST V. BOWKER. 191 tain bills, the defence would avail ; but no such thing passes. I cannot annex to this delivery the qualification that the}' are to be the plaintiff's own goods if he does certain things. The captain, then, receives them as Ogle's absolutely. Is this state altered? The goods go on board; bills of lading are tendered to the captain to sign in blank ; the captain objects. According to the defendant's argument, the answer should have been, I leave the bills in blank, because it is as yet uncertain to whom the bills may be deliverable, for that the cargo is to go to Rucker, unless the plaintiff accepts certain bills ; but the answer given is, The blank in the bill is immaterial, for the goods are at all events to be de- livered to your owner. If the blank was immaterial, it imported no alteration in the terms of the delivery ; if it was material, a fraud was practised on the captain, which cannot avail the consignors. I there- fore think that the property of the goods entirely vested in the plaintiff, and that the subsequent acts of the consignors and their agents cannot prevent him from recovering against the defendants ; the judgment therefore must be for the plaintiff. Judgment for the plaintiff} \ WILMSHURST and Another v. BOWKER and Another. In the Common Pleas, May 8, 1841. [Reported in 2 Manning ^ Granger, 792.] In the Exchequer Chamber, February 3, 1844. [Repc/rled in 7 Manning ^- Granger, 882.] Case. The first count stated in substance that, on the 25th October, 1836, the plaintiffs bargained with the defendants to buy of them, and the defendants sold to the plaintiffs, 500 quarters of wheat at 51s. per quarter ; that on the 27th of said October, the defendants, by order of the plaintiffs, caused said wheat to be shipped on board of a certain vessel then lying at the port of Lynn, in the county of Norfolk, to wit, a vessel called the "Ramsgate,"of which one Lightowler was then master, to be carried from said Lynn to Maidstone, in the county of Kent, for the account and at the risk of the plaintiffs, and there to be delivered to the plaintiffs ; and the defendants then parted with tlie possession of the said wheat, and delivered the same out of their possession to the said Lightowler, in and on board of the said vessel ; and the said Lightowler then received the said wheat, and had possession of the same, for the purposes aforesaid. That afterwards, on the said 27th of October, the said Lightowler executed and delivered to the defendants a bill of lading, whereby he undertook, on the arrival of said vessel at Maidstone, to deliver the said wheat to the order of the defendants ; . i Heath, Chambre, and Dallas, JJ., delivered brief concurriug opiuious. 192 WILMSHURST V. BOWKER. [CHAP. II. and the defendants made out an invoice of said wheat, stating +he same to be shipped by order and for the account and risk of the plain- titfs, and wrote a letter to the plaintiffs, requesting them to add to said invoice the charge for insuring said wheat, and remit the amount to the defendants in due course ; and thereupon the defendants enclosed said invoice and bill of lading (having indorsed the latter to the plain- tiffs) in said letter, and sent said letter, invoice, and bill of lading to the plaintiffs, and the plaintiffs afterwards, on the said 27th of October, received the same, and then became and were, and thence hitherto had been and still were, the owner's thereof respectively ; of all which the defendants had notice. Breach : That afterwards, on the said 27th of October, the plaintiffs then being the holders of the said bill of lading, and not being bankrupts or insolvents, but being then lawfully entitled to have the said wheat delivered by the said Liglitowler to them the plaintiffs, the defendants, well knowing the premises, but contriving and intending to injure and defraud the plaintiffs, did not nor would suffer or permit the said wheat to be delivered to the plaintiffs, but wrongfully and injuriously, without the license or consent, and against the will of the plaintitTs, revoked and rescinded the said sale of the said wheat to the plaintiffs, and caused and procured the said wheat to be stopped in its passage to the plaintiffs, and forthwith upon such stoppage, and without the plaintiffs having notice thereof or of their intention so to do, hindered and prevented the same from being deliv- ered to the plaintiffs ; 2)er quod, &c., laying special damages. Pleas : first, not guilty. Secondly, that the plaintiffs did not bar- gain with the defendants to buy of them, nor did the defendants sell to the plaintiffs the said wheat in the declaration mentioned, at the said price in that behalf therein mentioned, in manner and form as the plaintiffs had in the first count of the declaration alleged ; concluding to the country. Thirdly, that upon the said 25th of October, 1836, in the first count mentioned, the plaintiffs bargained with the defendants to buy, and the defendants then sold to the plaintiffs, the said quantities of wheat in the said first count mentioned, at and for the price in that behalf in the said first count alleged, upon the terms and conditions for the pa}'- ment thereof as follows : (that is to say) that the payment thereof should be made by bankers' draft on London at two months' date, to be remitted by the plaintiffs to the defendants upon receipt by the plaintiffs of the invoice and bill of lading, and the defendants then caused the said wheat to be shipped on board of the said ship or vessel, and the possession thereof to be delivered to the said master and com- mander in pursuance of the said bargain, to be by him carried to Maid- stone in the county of Kent, and to be then delivered to the plaintiffs according to the said agreement, and the terms and conditions thereof; that the plaintiffs upon the day and year in that behalf in the said first count alleged, and before the committing of the said supposed griev- ance in that count mentioned, received the said invoice and bill of SECT. VI.] WILMSHURST V. BOWKER. 193 lading, as in the said declaration alleged, but that the plaintiffs did not nor would, upon the receipt of the said invoice and bill of lading, re- mit or tender, or offer to remit to the defendants any bankers' draft on London for the payment of the price of the said wheat, but, on receipt of the said invoice and bill of lading, wholly failed and neglected so to do, contrary to their agreement in that behalf as aforesaid ; whereupon the defendants caused and procured the wheat to be stopped, and then hindered and prevented the same from being delivered to the plain- tiffs, as they lawfully might for the cause aforesaid. Verification. The plaintiffs joined issue on the first and second pleas, and replied de injuria to the third. At the trial of the cause before Maule, J., at the adjourned sittings in London, after last Michaelmas term, 1839, the plaintiffs' counsel opened the following as the facts of the case. The plaintiffs are corn- merchants at Cranbrook in Kent, carrying on business under the firm of John Wilmshurst & Son ; and are also partners in a banking-house there under the firm of Wilmshurst, Hague, & Co. The defendants are corn-merchants at Lynn, in the county of Norfolk. On the 25th of October, 1836, the defendants contracted to sell to the plaintiffs a quantity of wheat on the terms mentioned in the following sold note signed by the defendants. A corresponding bought note was, at the same time, signed by the plaintiffs. " Sold, the 25th of October, 1836, to Messrs. John Wilmshurst & Son, about 300 quarters of wheat, as per sample, at 51s. per quarter on board. Payment by bankers' draft on London at two months' date, to be remitted on receipt of invoice and bill of lading." On the 27th of October, the wheat, which consisted of 310 quarters, was shipped on board of a vessel, called the " Ramsgate," W. Lightowler, master, for Maidstone, deliverable " unto order, or to assigns, he or they paying freight," «fec. On the same day the defendants, in pur- suance of an arrangement to that effect with the plaintiffs, whereby the defendants were to charge the plaintiffs with the premium in addi- tion to the cost price of the wheat, gave orders to their agents in London to effect an insurance on the wheat, and to hand the policy to the plaintiffs. The defendants forwarded to the plaintiffs the bill of lading, indorsed in blank, and an invoice of the wheat in a letter, wherein they requested the plaintiffs to remit to them the amount ot the invoice, after having added to it the charges for insurance. The wheat was described in the invoice " as a cargo of wheat shipped on board the ' Ramsgate,' W. Lightowler, master, for Maidstone, by order, and for the account and risk, of Messrs. John Wilmshurst & Son." On the 20tli, the plaintiffs received the policy of insurance on the wheat from the defendants' agents, witli an account of the charges thereon, amounting to £5 12.s. Id. On tlie 30th, the plaintiffs trans- mitted to the defendants by post a bill for £796 2s. Id. (being the 194 WILMSHURST V. BOWKER. [CHAP. II. Invoice price of the wheat and the charges for insurance), in the fol- lowing form : — ^' -4°* 4?" ^ Lynn, October 27, 1836. £796 25. 1(7. / ^0^°"* / Two months after date pa\^o ^r^rder seven hundred and ninety- six pounds, two shillings, aj^ ^e.^nny, value received. Messrs. Wilmshukst & Son, Merchants, Cranbi'ook. By return of post on the 1st of November the defendants sent back this bill to the plaintiffs, inclosed in the following letter: — " Gentlemen, — We have your favor of the 30th ult., inclosing j'our acceptance, which, being contrary to agreement, we return, and have arranged otherwise for the disposal of the cargo." On the 3d of November, Wilmshurst the son wrote the following reply : — " Gentlemen, — 1 was much surprised at the tenor of your letter this morning. It was altogether an error of my father's in sending a bill drawn on us as merchants. However, we now send \ou a bankei's' acceptance, and trust 30U will see the wheat forwarded immediately. In this letter a bill was enclosed ,fts follows : — A? ;> Lynn, October 27, 1836. £796 2.S. 1(1 J' / ^ Two months after date pajAo'feu^brder seven hundred and ninetj'- six pounds, two shillings, ^d^i^enny, value received. Messrs. Wilmshurst, lfAd?6E^i&; Co., Bankers, Cranbrook. By the same post the younger Wilmshurst sent a second letter to the defendants, offering, in case the defendants should not be " agreeable" to take the bill last sent, to pay cash for the wheat, less the discount. The defendants, considering the second draft not to be a compliance with the terms of the contract, returned it also in a letter, repeating that the cargo was otherwise disposed of. Immediate!}' after they returned the first draft, the defendants got the wheat back from Captain Lightowler. The}' subsequently sold it at 065. a quarter. Upon this statement of facts the learned judge observed that the third plea must be taken as proved, and that the only question was, whether such plea would be an answer to the action after verdict. It was thereupon agreed that a verdict should be entered for the plain- tiffs on the first and second issues, and for the defendants on the third, with liberty to the defendants, in the event of the plaintiffs obtaining a rule for judgment tton obstante veredicto on the third plea, to move that the verdict might be entered for them upon the second issue, on the ground of the misstatement of the contract in the declaration SECT. VI.] "WILMSHUKST V. BOWKER. 195 (the omission of the stipulation as to the terms of paj-ment), the court to have the same power of amendment as the judge at nisi prius. The damages were assessed contingently at £77. Greemcood now showed cause. Butt in support of the rule. Cur. adv. vult. TiKDAL, C. J., now delivered the judgment of the court. . . . The question is, whether after the sale of the wheat to the plaintiffs, and such constructive delivery thereof to them as is stated in the declara- tion, the defendants were justified in stopping the wheat in transitu, upon the ground set forth in the plea. That the defendants cannot justify the stoppage of this wheat in transitu, upon the ordinary ground on which such right is exercised, may be readily admitted. The ordinary right of countermanding the actual delivery of goods shipped to a consignee, is limited to the cases in which the bankruptcy or insolvency of the consignee has taken place. The law as to this point is very clearly laid down by Lord Stowell, in the case of The Constantia, 6 Rob. Adm. Rep. 321, and in many cases in the common law reports {vide 2 N. & M. 644) ; and as, in the present case, the first count directly alleges that the plaintiffs were neither bankrupt nor insolvent at the time when the stoppage took place, and as no traverse is taken upon this allegation, it must be taken that the common ground of stopping in transitu is wanting in the present case. But the question in this case is, whether, under the par- ticular terms of this contract, the consignors have not reserved to them- selves the power of withholding the actual delivery of the wheat, until the consignees should comply with the mode of payment stipulated by the contract. There is no doubt that the property in the wheat passed to the plaintiffs under the contract, upon which point much of the argument before us has turned ; but the question is as to the intention of the parties, as evidenced by the contract, with reference to the deliv- ery of possession. And we are of opinion that the intention of the parties, under this contract, was, that the consignors should retain the power of withholding the actual delivery of the wheat, m case the con- signees failed in remitting the bankers' draft, not upon tlie delivery of the wheat, but on the receipt of the bill of lading, which, in the ordi- nary course of business would precede the arrival or delivery of the wheat. And we think the object of making the receiving of the invoice and bill of lading and the remitting of the bankers' draft to be simul- taneous or concurrent acts could have been no other than to afford security to the consignors, so that in case the consignees failed in the performance of the latter stipulation, the consignors might withhold the actual delivery of the cargo. AVhcn goods are sold, and nothing is said about the time of delivery or the time of payment, the seller is bound to deliver them whenever they are demanded on payment of the price; " but the buyer," as is observed by Mr. Justice Bayley in Blojsam v. Sanders, 4 B. & C. 948, 7 D. & R. 405, "has no right 196 WILMSHURST v. BOWKER. [CHAP. II. to have the possession of the goods until he pa^'s the price." In the present case, it is part of the stipulation that something shall be done by the buyer before the time when, in the usual course of business, the goods can be actually delivered ; namely, upon the handing over of the bill of lading to the buyers, which ordinarily precedes the arrival of the ship ; so that the right to the possession of the goods could not vest until the buyers either remitted, or tendered, or offered to remit the bankers' draft in payment. And we think this view of the case not inconsistent with the judgment of the court in Walley v. Montgomery, 3 P^ast, 585 ; in which, althongli it was held that the consignors had no right to stop hi transitu, it is to be observed, that the consignees had never refused to accept the bills which had been drawn on them for the price of the timber, but, on the contrary, were ready and offered so to do; nor, indeed, does it appear in that case to have been a condition that the bills should be accepted at any certain time before the actual delivery. In the present case we hold that upon the proper construc- tion of the plea, the contract of sale entered into between the parties was conditional as to the right of possession of the cargo ; and that the condition not having been performed on the part of the plaintiffs, the consignees, the defendants, the consignors, were justified in preventing the wheat from being delivered. Hide discharged. The plaintiffs brought a writ of error upon the foregoing judgment, and assigned errors which were argued in the Exchequer Chamber before Lord Abinger, C. B., Parke, B., Patteson, J., Alderson, B., Coleridge, J., Rolfe, B., Wightman, J. M. D. Jim (with whom was Butt), for the plaintiffs. Greemvood, for the defendants. Lord Abinger, C. B. We are quite unanimous ; and, however reluctant we ma}' be to overturn a considered judgment of the Court of Common Pleas, we find ourselves unable to come to an}- other con- clusion than that the plaintiffs are entitled to recover. We accede to the general principle laid down by the court below ; and if the facts had been before a jury, we are not prepared to say that they might not have drawn the inference that the remitting of a banker's draft was a condition precedent to the vesting of the property in the wheat in the plaintiffs. But we draw no such inference from what appears upon the record. The delivery of the bill of lading and the remitting the banker's draft could not be simultaneous acts ; the plaintiffs must have received the bill of lading and invoice before tliey could send the draft. The default on the part of the plaintiffs amounts to no more than this, that they have omitted to perform one part of their contract. Alderson, B. It is quite consistent with the decision of the Court of Common Pleas that the remitting the banker's draft was a condition subsequent. Judgment reversed. SECT. VI.] WAIT V. BAKER. 197 WAIT AND Another v. BAKER. In the Exchequer, February 5 & 7, 1848. [Reported in 2 Exchequer Reports, 1.] Trover for 500 quarters of barle}'. Pleas, not guilt}-, and not pos- sessed ; upon which issue was joined. At the trial, before Williams, J., at the last spring assizes for Somer- setshire, the following facts appeared : The defendant, a corn-factor at Bristol, had occasional dealings with a person of the name of Leth- bridge, who was also a corn-factor at Plymouth, and on the 5th of December, 1846, wrote to him the following letter: — " I hear that the crop of barle}- in the south of Hampshire is good this year, and that at Kingsbridge the price is low, compared with the markets further eastward. If you are doing anything in the article this season, and can make me an offer of a cargo, I have no doubt but we may have a transaction Let me hear from you in due course. Send me sample in letter, describing weight, &c." To which Lethbridge wrote the following answer on the 9th of that month : — " I beg to inform 3-ou that I have not 3'et commenced buying barley in Kingsbridge market, farmers there standing out for 10s. a bag. After Saturday's market I will send you a sample and an offer, if possible." On the 14th Lethbridge wrote the following letter to the defendant: " I horewitli hand you samples of common and chevalier barley of the neighborhood of Kingsbridge, and will engage to sell you from 400 to 500 quarters f. o. b. barley at Kingsbridge, or neighboring port, at 40s. per quarter common, and 42.s. per quarter chevalier, in equal quantities, for cash, on handing bills of lading, or acceptance at two months' date, adding interest at the rate of £5 per cent per annum, subject to your reph' by course of post." On the 16th, the defendant returned the following reply: — "I beg to accept your offer of 250 quarters of chevalier barley, at 42s. per quarter, and 250 quarters common, at 40.s. per quarter f o. b., for cash payments, on rccoi|)t of bill of lading and invoice, or acceptance at two months' date, adding interest at the rate of £5 per cent per annum, subject to 30ur reply bj' course of post." On the 18th, Lethbridge wrote the defendant as follows : — •'Your favor of the 16th came duly to hand, and note by it your acceptance of my offer of barley. I suppose I am to take up a vessel at 198 WAIT V. BAKER. [CHAP. II. the best possible freight I can get her for. Please instruct me in this, and sa}' if for Bristol or any other port." On the 19th the defendant wrote in 'answer: — " I took it for granted that j^ou would get a vessel for the barley I have bought of 3'ou f. o. b., and therefore did not instruct you to seek one. I trust that you will be particular to select a good sliip, and at the lowest possible freight, for this port ; and, above all, take care that the quality of the barley is fully equal to sample. A party, who will take part of it, is extremely particular in these matters ; and the sam- ples are sealed and held in the custody of a third party. Please to advise when you have taken up a vessel, with particulars of the port she loads in, so that I may get insurance done correctly." ^ After some further correspondence respecting the amount of the freight, Lethbridge wrote on the 23d to the defendant : — "I now send you copy of charter-party of the 'Emerald,' which vessel will sail for the port of loading to-day or to-morrow, and I will lose no time in getting her loaded." The defendant, by letter dated the 24th, acknowledged tlie receipt of the charter-part}' (not under seal), which was dated on the 22d, and was in the name of Lethbridge, to load at Dartmouth, a portion to be filled up at Salcombe, to proceed to Bristol or any other port. On the 28th, Lethbridge wrote to the defendant : — " The ' Emerald ' will commence loading to-day. I hope to hand j'ou bill of lading in the course of the week." And again on the 1st of Januarj', 1847 : — " I hope to be able to send 3-ou invoice and bill of lading of ' Eme- rald ' on Tuesday or Wednesda}'." And on the 6th of January he wrote to the defendant as follows : — "The ' Emerald' is nearly loaded ; expect the bill of lading to-day or to-morrow. I expect to be in Exeter on Friday, when it is very likely I shall run down and see 3'Ou." The vessel was loaded with common and chevalier barley ; and on the 7th of January, Lethbridge received from the master the bill of lading of the cargo, which was therein expressed to be deliver- able at Bristol to the order of Lethbridge or assigns, paying the freight as per charter. On the 8th, Lethbridge called upon the defendant at Bristol early in the morning, and left at his counting house the invoice and an unindorsed bill of lading. At a subsequent part of the day, Lethbridge called again upon the defendant, when the defendant raised some objections to the qualitj' of the cargo, and asserted that it was 15 SECT. VI.] WAIT V. BAKER. 199 inferior to the samples ; he also threatened he would take the cargo, but sue Lethbridge for eight shillings a quarter difference. After some further dispute upon the mutter, the defendant offered Lethbridge the amount of the cargo in monej', and said that he accepted the cargo. Lethlnidge, liovvever, refused to accept the money, and to indorse the bill of lading to the defendant ; but took the bill of lading from the i counter and immediately proceeded to the plaintiffs', who were corn- ' factors, and had a house of business in the neighborhood, and indorsed the bill of lading to them, and received an advance upon it. The market at that time had risen considerably. The " Emerald'* arrived on the IGth, and on the 18th the defendant proceeded on board and claimed the cargo as the owner, and unshipped 1,240 bushels of the barley, worth £422 14s. ; but the plaintiffs, coming on board during the time the cargo was being unshipped, presented the bill of lading and obtained the rest of the cargo, and paid the captain the freight. The jury found that the defendant did not refuse to accept the barley from Lethbridge ; that the tender was unconditional ; and that Leth- bridge was not an agent intrusted with the bill of lading by the defendant. His lordship thereupon directed a verdict to be entered for the plaintiffs for £422 14s., reserving leave to the defendant to enter a verdict for him. A rule to show cause having been obtained, Croioder, JJarstow, and Greenwood appeared to show cause, but were stoi)ped by the court, who called upon IjuU and Montague Smith, in support of the rule. Parke, B. I am of opinion that the rule in the present case ought to be discharged. It is perfectl}- clear that the original contract between the parties was not for a specific chattel. That contract would be satisfied by the deliver}' of any 500 quarters of corn, provided the corn answered the character of that which was agreed to be delivered. I B\' the original contract, tlierefore, no property passed ; and that mat- ter admits of no doubt whatever. In order, therefore, to deprive the original owner of the property, it must be shown in this form of action — the action being for the recovery of the property — that, at some I subsequent time, the propertv passed. It may be admitted, that if goods are ordered b}' a person, although they are to be selected by the vendor, and to be delivered to a common carrier to be sent to the person by whom they have been onhjred, the moment the goods, which have been selected in pursuance of the contract, are delivered to the carrier, the carrier becomes the agent of the vendee, and such a deliv- ery amounts to a delivery to the vendee ; and if there is a binding contract between the vendor and vendee, eitlier by note in writing, or b}' part pa3-mont, or subsequentl}' by part acceptance, then there is no doubt that the property passes by such delivery to the carrier. It is necessary, of course, tliat the goods sliould agree with the contract. In this case, it is said that the delivery of the goods on shipboard is equiv- 200 WAIT V. BAKER. [CIIAP. II. alent to the delivery I have mentioned, because the ship was engaged on the part ot Lethbridge as agent for the defendant. But assuming that it was so, the delivery of the goods on board the ship was not a deliverv of them to the defendant, but a deliver}' to the captain of the vessel, to be carried under a bill of lading, and that bill of lading indi- cated the person for whom they were to be carried. B}' that bill of lading the goods were to be carried by the master of the vessel for and on account of Lethbridge, to be delivered to him in case the bill of lading should not be assigned, and if it should, then to the assignee. The goods, therefore, still continued in the possession of the master of the vessel, not as in the case of a common carrier, but as a person car- i-ying them on behalf of Lethbridge. There is no breach of duty on the part of Lethbridge, as he stipulates under the original contract that the price is to be paid on the delivery of the bill of lading. It is clearl}- contemplated by the original contract, that, by the bill of lading, Leth- bridge should retain control over the property. It seems to me to follow that the deliver}- of the 500 quarters to the captain, to be deliv- ered to Lethbridge, is not the same as a delivery of 500 quarters to a common carrier by order of the consignee. The act of delivery, therefore, in the present case, did not pass the property. Then, what subsequent act do we find wliich had tliat effect? It is admitted by the learned counsel for the defendant, that the property does not pass, unless there is a subsequent appropriation of the goods. The word appropriation may be understood in different senses. It may mean a selection on the part of the vendor, where he has the right to choose the article which he has to supply in performance of his contract ; and the contract will show when the word is used in that sense. Or the word ma}- mean that both parties have agreed that a certain article shall be delivered in pursuance of the contract, and yet the property may not pass in either case. For the purpose of illustrating this posi- tion, suppose a carriage is ordered to be built at a coachmaker's ; he may make any one he pleases, and, if it agree with the order, the party is bound to accept it. Now suppose that, at some period subsequent to the order, a further bargain is entered into between this party and the coach-builder, by which it is agreed tliat a particular carriage shall be delivered. It would depend upon circumstances whether thf> prop- erty passes, or whether merely the original contract is altered from one which would have been satisfied by the delivery of any carriage answer- ing the terras of the contract, into another contract to supply the par- ticular carriage, — which, in the Roman law was called obligatio certi corporis, where a person is bound to deliver a particular chatt-'-l, but where the property does not pass, as it never did by the Roman law, until actual delivery ; although the property after the contract remained at the risk of the vendee, and, if lost without any fault in the vendor, the vendee, and not the vendor, was the sufferer. The law of England is ditferent: here property does not pass until there is a bargain with respect to a specific article, and everything is done which, accoi'ding SECT. VI.] TURNER V. TRUSTEES. 201 to the intention of the parties to the bargain, was necessary to transfer the property in it. "Appropriation" may also be used in another sense, and is the one in which Mr. Butt uses it on tlie present occasion ; viz., where both parties agree upon the specific article in which the property is to pass, and nothing remains to be done in order to pass it. It is contended in this case that something of that sort subsequently took place. I must own that I think the delivery on board the vessel could not be an appropriation in that sense of the word. It is an ap- propriation in the first sense of the word only ; the vendor has made his election to deliver those 500 quarters of corn. The next question is, whether the circumstances which occurred at Bristol afterwards amount to an agreement by both parties that the property in those 500 quarters should pass. I think it is perfectly clear that there is no pre- tence for saying that Lethbridge agreed that the property in that corn should pass. It is clear that his object was to have the contract repu- diated, and thereby to free himself from all obligation to deliver the cargo. On the other hand, as has been observed, the defendant washed to obtain the cargo, and also to have the power of bringing an action if the corn did not agree with the sample. It seems evident to me that, at the time when the unindorsed bill of lading was left, there was no agreement between the two parties that that specific cargo should become the property of the defendant. If that is so, the case remains, as to the question of property, exactly as it did after the original con- tract. There is a contract to deliver a cargo on board, and probably for an assignment of that cargo by indorsing the bill of lading to the defendant ; but there was nothing which amounted to an appropriation, in the sense of that term which alone would pass the property. The result is, that, in this action of trover, the plaintiffs, claiming under Lethbridge by the indorsement of the bill of lading, are entitled to the property ; and then Mr. Baker has his remedy against him for the non- fulfilment of his contract, which he certainly has not fulfilled. RoLFE, B., and Platt, B., concurred. Hule discharged.^ TURNER V. TRUSTEES. In the Exchequer Chamber, May 20, 1851. [Reported in 6 Exchequer Reports, 543] Pattesox. J. This was an action to try the right of the plaintiffs, as assignees of Messrs. Higginson & Deane, who were merchants in Liverpool, trading under the name of Barton, Irlam, & Higginson, and had become bankrupts, to the possession of a quantity of cotton and timber, as against Messrs. Menlove & Co., who were merchants at 1 Alderson, B., delivered a brief concurring opinion. 202 TURNER V. TRUSTEES. [CHAP. II. Charleston, in America, and the real defendants in this suit. The property- in dispute constituted the cargoes of two vessels, of which the bankrupts were owners, called the " Charlotte" and the " Higginson ; " and, as it is agreed that the same questions arise with respect to both, and that the circumstances are similar, it will be only necessar}^ to advert to the leading facts relating to one of them, the " Charlotte." It appears, that in August, 1847, the bankrupts sent orders to Menlove & Co., at Charleston, to ship, on their (the bankrupts') account, a quan- tit}- of cotton for the homeward cargo of the " Charlotte, " a ship belonging to the bankrupts, which had been sent to America with a cargo of coals and salt, and which arrived at Charleston on the 19th of September. In the meantime, Menlove & Co. had made considerable purchases of cotton in execution of the order, and continued to make further pur- chases until within a day or two of the sailing of the " Charlotte" on her homeward voj'age with the cotton on board, on the 13th of October. On the 12th of October, the master of the "Charlotte" signed a bill of lading of the cotton, "to be delivered at Liverpool unto order or to our assigns, paying freight for cotton nothing, being owners' propertj- ; " and Menlove & Co. indorsed the bill of lading in these terms : "Deliver the within to the Bank of Liverpool, or order. Edward Menlove & Co." Messrs. Menlove «fe Co. informed the bankrupts, from time to time, of these purchases as they were made ; and on the 16th of October the}' informed the bankrupts of the sailing of the "Charlotte," and that the}' had drawn bills upon them of several dates (the earliest being of the 23rd of September), being for the cargo "on their account," by the " Char- lotte," and desiring them to insure the cotton. On the 19th of Octo- ber, Menlove & Co. sent an abstract invoice of the cotton, dated the 13th of October; in which it was stated, that the cotton was shipped by Menlove & Co. on board the " Charlotte," for Liverpool, "by order, and for account and risk of Messrs. Barton, Irlam, & Co. there, and addressed to order." And on the 23rd of October, Menlove & Co. sent to the bankrupts a full invoice of the cotton, dated the 13th of October, stating that the cotton was shipped for Liverpool b}' order and for account of Barton & Co. there, and to them consigned. It appeared that Menlove & Co., having no sufficient funds of the bankrupts' in their hands to pay for the cotton, sold the bills they had drawn upon them to the Bank of Charleston, and delivered to them the bill of lading, indorsed as before mentioned, as security for the due honor of the bills, which, with the exception of one very small one, were dishonored hy the bankrupts, and taken up b}' Menlove & Co. ; and by letter of the 23rd of October, Menlove & Co. informed the bankrupts, that the bank to whom they had sold the bills required the delivery of the bill of lading to them, and that they had so delivered it. On the 13th of November, Higginson &, Deane became bankrupts. The "Charlotte " arrived at Liverpool on the 26th of Xovember ; and on the 27th notice was gven to the master, that Menlove & Co. claimed to stop the cargo in transitu^ and required him to deliver it to the Bank of Liverpool on their account. SECT. VI.] TURNEE V. TRUSTEES. 203 The question is, whether Menlove & Co. could, under the circum- stances, insist upon the delivery of the cargo to them or their agents unless the bills were duly honored. It was contended for the plaintiffs, the assignees, that, by delivery of the goods on board th«f bankrupts' own ship, specially appointed for the purpose of bringing home those goods, and such deUvery being made to the master, who was the bank- rupts' agent for the purpose of receiving them, the absolute property vested in them, the sale being complete by the acceptance of the order and the terms of the invoice ; and that the terms of the bill of lading, by which the goods were to be delivered at Liverpool to order or to oicr (Menlove & Co.'s) assigns, did not prevent such absolute property vest- ing in the bankrupts, nor entitle Menlove & Co., the unpaid vendors, to any right of stoppage in transitu, or any other right over them whatever ; and more especially as it was stated that no freight was to be paid for the cotton, being ownej's' property, which was inconsistent with the property remainliig in Menlove & Co. It was also further contended for the plaintiffs, that the captain had no power to bind the bankrupts by the special terms of the bill of lading, and that the delivery must be taken to be absolute to the vendees ; and further, that if Menlove & Co. had any lien, the assignment of the bills of lading to the bank divested that lien, and deprived Menlove & Co. of all power over the goods. The cases mainly relied upon by them in support of tlieir principal point were Ogle v. Atkinson, 5 Taunt, 759 ; Coxe v. Harden, 4 East, 211 ; the case of The Constantia, 6 Rob. Adm. Rep. 327 ; Bohtlingk v. Inglis, 3 East, 381, and the case of Fowler v. Kymer cited in it. All these cases, however, are clearly distinguishable from the present.^ On the part of the defendants it was contended, that Menlove & Co.t*' had never parted with the property in the goods to the bankrupts, but had reserved it until they were paid the purchase-money, notwithstand- ing the terms of the invoice, and the statement in the bill of lading that no freight was payable for tlie cotton, being owners' property ; and we are of opinion that, upon the facts of the case, the judge was right in directing the verdict to be entered for the defendants upon the trial ; and that they are now entitled to our judgment. It appears by the bill of exceptions, that it was agreed on both sides at the trial that there was no question of fact for the jury, and tliat the judge should direct them how they should give their verdict ; and he being of opinion, upon all the facts of the case, that Menlove & Co. had not delivered the cotton on board the ship to be carried for and on account and at the risk of the bankrupts, but that they intended to pre- > serve their riglit as unpaid vendors, directed the verdict to be entered for the defendants. There is no doubt, that a delivery of goods on board of the purchaser's own ship is a delivery to him, unless the vendor protects himself by special terms restraining the effect of such delivery. In the present case the vendors by the terms of the bill of lading made ^ His lordship here stated the cases cited. 204 TURNER V. TRUSTEES. [CHAP. II. the cotton deliverable at Liverpool to their order or assigns ; and there was not, therefore, a delivery of the cotton to the purchasers as owners, though there was a deliver}' on board their ship. The vendors still reserved to themselves, at the time of delivery to the captain, ihe jus dispo?ie7idi of the goods, which he by signing the bill of lading acknowl- edged, and without which it may be assumed that the vendors would not have delivered them at all. The question really is, whether any and what effect is to be given to the terms in the bill of lading making the goods deliverable to the order of the vendors ; for, if by those terms they reserved to themselves the dominion over the cotton, it would not pass to the assignees. The invoice would pass no property whatever its terms might be, the prop- erty would only pass upon delivery, and the only effect to be attributed to the form and expressions of the invoice or bill of lading would be as indicating the terms upon which the goods were delivered. The plaintiffs in error rely upon the terms of the invoice and the expression in the bill of lading, that the cotton is free of freight, being owners' property, as showing that the delivery on board the ship was with intention to pass the property absolutely ; but the operative terms of the bill of lading, as to the delivery of the goods at Liverpool, and the letter of Menlove & Co. of the 23 rd of October, show too clearly for doubt, that notwithstanding the other terms of the bill of lading and the invoice, Menlove & Co. had no intention, when the}' delivered the cotton on board, of parting with the dominion over it, or vesting the abso- lute property in the bankrupts. Upon this part of the case, the decisions of the Court of Exchequer in Van Casteel v. Booker, 2 Exch. 691, and Wait V. Baker, 2 Exch. 1, are authorities directly in favor of the defendants. The plaintiffs further insisted, that the captain had no power to bind the bankrupts by such terms in the bill of lading as would leave the property still in the control of the vendors, and yet engage that the cotton should be freight free. Whether, as the cotton was actually carried, the owners of the ship as such might not be entitled to freight upon a quantum meruit, notwithstanding the terms of the bill of lading, is a point not necessary now to determine ; but with respect to the question, whether the plaintiffs could set up the want of authorit}' in the master as a ground for contending that there was an absolute deliv- ery of the goods, so as to vest the property in the bankrupts immediately upon the delivery, notwithstanding the special terms upon which the}'' were delivered and accepted by the captain, we are clearly of opinion that it is not competent to them to do so ; and that as Menlove & Co. delivered the cotton on board upon special terms, which the captain was not bound to accept, but without which they would not have delivered them, and which would preserve to themselves the control over them, the bankrupts cannot treat the delivery to the captain as a delivery to them as their property, when it was expressly agreed that they were not to be delivered to the bankrupts but to the order of the vendors ; and the want of authority of the master to accept them on such terms will SECT. VI.] KEY V. COTESWOKTH. 205 not have the effect of vesting the property absohitely in the bankrupts. The case of Mitchel v. Ede, 11 A. & E. 888, is a strong authority in favor of the defendants. With respect to the question whether the transfer of the bills of lading by themselves to the bank of Charleston divested their power over the goods, we are of opinion that it did not ; Menlove & Co. were the ven- dors of the goods, and reserved to themselves, by the terms upon which the}' deUvered them on board the ship, the property in those goods until payment duly made. By indorsing and depositing the bills of lading with the bank of Charleston as a security, they did not divest themselves of the property in the goods which they had reserved, and were in a situation to claim the goods as against the bankrupts by their agents at Liverpool. They never had divested themselves of the property in the goods, nor of the possession except by delivery to the captain. This is not the case of deliver}' to a carrier for the purpose of his delivering ^ them to tlie vendee, but a delivery for the purpose of the carrier deliver- ing them according to the order of the vendor, who retains more than a mere lien upon the goods. Neither the bankrupts nor the assignees ever had the property in the cotton as against the vendors, and the objection to their title may properly be taken under the plea of not possessed. It was said, that as Menlove & Co. had funds of the bankrupts in their hands to some, though to a very small, extent, they were not unpaid vendors to the full extent ; but this really makes no difference, as no particular portion of the cotton was bought with those funds ; and the bulk generally being purchased by Menlove & Co. with their own funds or credit, they retained their property in the whole of the goods until payment for tlie whole. A question was made as to the admissibility of some of the evidence ; but as no matter of fact was in question for the jury, and we are of opinion that, independently of the evidence objected to, there was suffi- cient unobjectionable evidence to warrant the direction of the judge, it has become immaterial to consider whether the evidence that was objected to was receivable or not. Our judgment, therefore, is for the defendants in error, and the judgment in the court below must be affirmed. Judgment affirmed. KEY AND Others v. COTES WORTH and Others. In the Exchequer, May 8, 1852. [Reported in 7 Exchequer Reports, 595.] Assumpsit for money received by the defendants for the use of the plaintiffs. Plea, non assumpserunt ; upon which issue was joined. At the trial before Martin, B., at the London sittings after last Trinity term, it appeared that the action was brought to recover 206 KEY V. COTESWORTH. [CHAP. H. the sum of £G71 locS. 9fZ., being the proceeds of two cargoes of Indian silk handkerchiefs, consigned by the plaintiffs, merchants at ^Madras, carrying on business under the firm of Bunny & Co., to the defendants, merchants in London, under the following circum- stances, which were mainly admitted on both sides : In the year 1845, Messrs. Kilgour &, Leith, merchants at Glasgow, were desirous, through the defendants, their London agents, of procuring Indian silk hand- kerchiefs from the plaintiffs at Madras ; and accordingly, on the 7th August, 1845, Kilgour & Leith wrote to the defendants as follows: " "We beg to acknowledge the receipt of your favors of 31st ult. and 5th inst. We find it does not answer your views to execute our friends' order for India goods. We thought you would have con- sidered this not as an isolated transaction, but as one connected with our account, and that of our friends, whose other business we have directed to come through your house, and which will extend to £12,000 or £15,000 per annum. It certainly will take some time before the first order can be brought forward, but afterwards the same quantity would be required every three or four months. We did not think the liability great, as the goods would of course remain under your control till settled for. However, to save all trouble in the ordering, &c., we have arranged to have the goods made in Madras, and shipped from thence to England ; we presume you will take them as a consign- ment, and on receipt of bill of lading accept for same. We will thank you to say as to this soon." In answer to that letter, the defendants, on the 9th of August, wrote to Kilgour & Leith in these terms : — " We will answer your proposition respecting the credit for the purchase of Madras handkerchiefs ; in the mean time please to inform us at what date your friends would draw on us for the cost ; whether you contemplate putting us in funds at their maturity, or do you intend the credit we have granted to you to be made available in part for this business." On the 11th of August, Kilgour & Leith wrote to the defendants as follows : — " The drafts for the Indian goods would be at six months' sight, and accompanied by bill of lading. We propose you accept for these goods as against a consignment of produce, we providing funds at maturity, or before if reshipped to the West Indies. We do not intend that the credit we have at present with you shall be made available for this business ; we want the handkerchiefs to represent the draft against them till shipped for our friends in the West." On the 18th of August, the defendants wrote to Kilgour & Leith in these terms : — SECT. VI.] KEY V. COTESWORTH. 207 " With reference to the credit you require for the cost of India goods to be ordered from Madras, we are willing to grant it you, knowing the firm to whom you transmit the order ; we will send you the necessary letter of credit." On being informed that the plaintiffs were the persons to whom Messrs. Kilgour & Leith desired the letters of credit to be given, on the 17th of September, the defendants wrote to the plaintiffs as follows : — " At the request of Messrs. Kilgour & Leith, of Glasgow, we beg to open credit in your favor to the extent of £1,500, to be applied to the execution of an order they have given you for Madras handker- chiefs, and for cost of which, as produced, you may draw on us at the customary date, on forwarding bills of lading to our order, and timely orders for insurance." On the 7th of November, the plaintiffs wrote to the defendants : — " We have the pleasure to acknowledge the receipt of your letter on the 17th of September, handed to us by Messrs. Scott, Bell, & Co., authorizing us to draw on you to the extent of £1,500, in execution of an order for handkerchiefs, on account of Messrs. Kilgour & Leith, of Glasgow. We shall gladly avail of this authority, shipping the goods to your order, and giving you timely advice, that you may effect insurance on your side." The plaintiffs accordingly executed the order, and forwarded the goods and bill of lading to the defendants, w4io received, accepted, and paid the bills drawn on them, in accordance with the letter of tlie 17th of September, to the extent of £1,500 therein mentioned; and this transaction was closed. On the 5th of February, 1847, Messrs. Kilgour & Leith wrote to the plaintiffs as follows : — " Inclosed are patterns of a third order for hand-kerchiefs, which we will thank you to have put in hand immediately on receipt. This order has been too long delayed ; and if you can by any means hurry execution, we shall feel particularly obliged. You will draw for cost, and consign goods as before." The patterns were inclosed, together with a detail of the order. The goods thus ordered were shipped for England in two vessels, the " Pro^vidence " and the "Essex." The goods by the "Providence" were shipped on the 21st of August, 1847 ; and they, as well as the goods shipped in the " Essex," were stated in the admissions to have been shipped on the said order, and on account of Messrs. Kilgour & Leith. On the same day (2l8t of August, 1847) the plaintiffs wrote to th( - defendants as follows : — 208 KEY V. COTESWORTH. [CHAP. II. " By the desire of oui- mutual friends, Messrs. Kilgour & Leith, of Glasgow, we beg to baud you herewith invoice and bill of lading for nine cases Madras handlverchiefs, shipped on the ' Providence,' Cap- tain S. Hicks, to your address, and against which we have as usual draAvn upon you at six months for the equivalent of the amount of invoice, in £369 25. Id., being at the current exchange of 2s. per rupee, and which will no doubt be duly protected. These goods have been placed in a cabin to prevent the chance of their sustaining injury from the cargo, and as they have not been insured, we trust you will cover the risk on your side." The bill of lading and invoice mentioned in this letter were enclosed, and the letter and its contents received by the defendants on the 2Gth of October in due course. By the bill of lading, which bore date the 21st of August, the goods were deliverable at London to the defend- ants or their assigns, they paying freight, &c. The invoice, which was also dated August 21, stated that the goods were consigned to the defendants, "on account and risk of Messrs. Kilgour & Leith, Glasgow." The goods by the " Essex" were shipped on the 9th of October. A bill of lading, indorsed in blank by the plaintiffs, and an invoice substantially in the same form as the above, were enclosed in a letter from the plaintiffs to the defendants, dated the 12th of October, and which was received by the defendants on the 22d of November. This letter was as follows: — " By desire of our mutual friends, Messrs. Kilgour & Leith, of Glasgow, we have the pleasure to hand you herewith invoice and bill of lading for eight cases Ventapollam handkerchiefs, shipped in tlie ' Essex,' Captain W. N. Howard, to your care ; and we have as usual drawn upon you at six months for the equivalent of the amount of mvoice in £302 13s. 8d., being at the current exchange of Is. ll^d. per rupee, and which will doubtless meet due honor. "We leave the insurance to be effected on your side." On the 27th of October, Messrs. Kilgour & Leith stopped payment, The goods by the "Providence" arrived in London on the 21st ot October, the goods by the " Essex " on the 3d of March, 1848. Both parcels were i-eceived by the defendants under the bills of lading, and both were sold by them, and the proceeds, amounting to £671 los. 9c/., sought to be recovered in this action, received by the defendants. Messrs. Kilgour & Leith were before and at the time, and still are, indebted to the defendants on a balance of account in a larger sum. On the 21st of October, Scott, Bell, & Co., the plaintiffs' corre- spondents in London, having received the bill drawn against the goods by the ' Providence,' caused it to be presented for acceptance to the defendants, who ultimately refused to accept it. The second SECT. VI.] KEY V. COTESWORTH. 209 bill was also presented for acceptance on the 22d of November, and dishonored, and both bills were duly protested. Upon the foregoing evidence, the learned judge was of opinion that there was no question for the jur}', and nonsuited the plaintitfs. Against a rule 7usi to set aside the verdict and for a new trial, Knowles and Willes showed cause. The Attorney-General {Montague Smith with him), in support of the rule. Cur. adv. vult. The judgment of the court was now delivered by Parke, B. [After stating the facts, his lordship proceeded:] It was contended at the trial, on behalf of the plaintiffs, that the sale of the handkerchiefs was a sale on a condition, either precedent or sub- sequent, that the defendants should accept the bills drawn on them iu respect of the handkerchiefs ; that, upon their refusal to accept, the condition precedent was never performed, and the property in the hand- kerchiefs never passed out of the plaintiffs, and that they were therefore entitled to them or their proceeds ; and that, if this were not so, at all events it was subject to the condition subsequent, that the defendants should accept the bills, and, if not, the property should revert, whicli condition was broken ; so that thereby the plaintiffs became entitled to the goods or their proceeds ; and whether the sale was on a condition or not, was a question for the jury, and ought to have been left to them. On the other hand it was contended, on behalf of the defend- ants, that it was not a sale upon a condition at all ; that it was an absolute sale by the plaintiffs to Messrs. Kilgour & Leith ; and that, upon the shipment of the goods by the plaintiffs on accountjindjdsk of Messrs. Kilgour & Leith, followed up by the transmission of the bills of lading to the defendants,— one bill of lading making them the consignees, and the other the indorsees, — the property and possession absolutely vested in Kilgour & Leith, and these goods thereby became theirs, and were at their sole risk, and they alone were entitled to tliem and their proceeds ; and that, if the plaintiffs had any right of action against the defendants, which on their part was denied, it was upon a contract to accept the bills, to be implied from the acceptance of tlie goods, with notice of the contents of the letters of the 21st of August and 12th of October; and that, wliether it was a sale upon a condition or not, was a question of law for the judge, and not one of fact for the jury ; the entire case, so far as related to the contract of sale, being contained in written documents, and the parties never having had any personal communication with each other. The learned judge was of opinion that tliere was no question for the jury in this case, and that it was for him to decide what tlie contract was ; and lie thouglit tlie sale , to Messrs. Kilgour & Leith was an absolute, not a conditional one ; ' that the property vested in them upon the delivery on board the ship, and tlie transmission of the bills of lading to the defendants ; and that the plaintiffs could not maintain the present action against the defendants, who have received the goods and disposed of them under the authority 210 GODTS V. ROSE. [CHAP. II. of Kilgonr & Leith, aud could not bring an action for the proceeds ; and, by his direction, tlie plaintiffs were nonsuited. "We are of opinion that the ruling of the learned judge was correct. AVe think that the question, what was the contract between the parties, was, in this ease, entirely one of law for the judge to decide upon ; nor was there any evidence of usage to which the letters refer, which would be matter to be left to the jury. Looking at the written docu- ments alone, the learned judge was quite right in the view he took at the trial, that the property vested by the transmission of the bills of lading in the manner described to the defendants, with the invoices at the same time. If it had been the intent of the vendors to preserve their right in that property until the bill drawn against it was accepted, they ought to have transmitted the bills of lading indorsed in blank to an agent, to be delivered over only in case the acceptance took place. Having delivered them without that qualification, the property vested in Kilgour & Leith, or the defendants as their agents. Our judgment in this case is in conformity with that of the Court of Exchequer Chamber in the case of Wilmshurst v. Bowker, 7 M. & Gr. 882 ; but there is a passage in the judgment of Lord Abinger which was much relied on by the learned counsel for the plaintiffs. The circumstances of the two cases are very similar ; and Lord Abinger stated, that, if the facts had been before a jury, he was not prepared to say that they might not have drawn the inference that the remitting of the banker's draft, the mode of payment agreed on in that case, was a condition precedent to the vesting of the property. In that case there may have been some particular facts to go to the jury, but at all events it was only the obiter dictum of Lord Abinger. It is sufficient to say, for the reasons before given, we think that in this case there. was no question of fact as to the contract to be submitted to the jury. Several other cases were cited on collateral points, to which it is unnecessary to refer. The rule is therefore discharged. Mule discharged. GODTS V. ROSE. In the Common Pleas, November 22, 1855. [Reported in 2,5 Law Journal Report, Common Pleas, 61.] Trover for casks of oil. Pleas, first, not guilty ; and, secondly, that the goods were not the goods of the plaintiff. Issues thereon. The action was tried before Jervis, C. J., at the sittings for London after last Trinity term, when it appeared that the plaintiff, a commis- sion merchant, on the 12th of March, 1855, sold to the defendant, an oil and color merchant, through Soanes & Sons, brokers, acting on behalf of both the plaintiff and the defendant, five tons of foreign rape oil on the following contract: — SECT. VI.] GODTS v. ROSE. 211 London, March 12, 1855. Bought for account of Mr. W. A. Rose, of U. A. Godts, five tons of first quality foreign refined rape oil, at 53s. per cwt., usual allow- ances. To be free delivered and paid for in fourteen days by cash, less £2 10s. per cent discount. (Signed) Geo. Soanes & Sox, Brokers. The plaintiff, on receipt of the sold note from the brokers, gave to the wharfinger, Humphery, at whose wharf he had some oil, the following transfer order : — No. 1122. London, March 13, 1855. To the Superintendent of Hibernia "Wharf. Please transfer to the order of W. A. Rose, Esq., ex "Neptune," from Havre, entered with charges, from mark Nos. 46-56, eleven pipes refined rape oil. (Signed) U. A. Godts. The wharfinger thereupon gave the plaintiff the following notice of transfer, diiected to the defendant : — Hibernia Wharf, Southwark, March 13, 1855. Mr. W. A. Rose. Sir, — I have received an order from U. A.. Godts, for 46-56, eleven casks rape oil, ex " Neptune," from Havre, which are transferred to your name. (Signed) For John Humphery, T. N. Sampson. The plaintiff's clerk immediately went with this notice of transfer to the defendant's counting-house and delivered it to the defendant's clerk, together with an invoice of the oils, and demanded a check in payment ; this was refused by the defendant's clerk, on the ground that the plaintiff was not entitled to be paid until fourteen days after delivery. The plaintiff's clerk then demanded to have the notice of transfer returned to him, but the defendant's clerk refused to do so and retained it, and on the same day sent to the wharfinger, who delivered to the defendant a portion of the oil. Before the whole had been delivered, the plaintiff went to the wharfinger and countermanded the delivery ; but the latter, being of opinion tliat the property in the oil had passed to the defendant, delivered the whole to him, where- upon the plaintiff brought this action. The broker was called as a witness for the plaintiff, and on cross- examination stated that the commercial meaning of the contract was that the seller would have fourteen days to deliver, and the buyer fourteen days to pay after delivery ; that it was customary to require payment on delivery, but that such was not the meaning of the con- tract. On re-examination, however, he stated that the seller may deliver within fourteen days and require payment. The jury found that the plaintiff's clerk did not intend to part with the oil or the 212 GODTS V. ROSE. [CIIAP. II. notice of transfer without the check, and that he said so at the time. The learned judge directed a nonsuit lu be entered, and reserved leave to the plaintiff to move to enter a verdict for £265. Raymond showed cause. Byles, Serjt., and H. James, in support of the rule. Jervis, C. J. I am of opinion that this rule ought to be made absolute. Several objections have been made to the maintenance of tliis action, but I do uot thinlv that any of them are entitled to prevail. It is first said that parol evidence was not admissible to explain the written contract ; but it hardl}' lies in the mouth of the defendant to make that objection, as it was he himself who extracted the evidence on cross-examination of the plaintiff's witness. The result of it was, that the seller may deliver at any time within fourteen days, aud at the time of delivery require paymeut. Then it is said that such a construction conflicts with the decision of this court in Spartali v. Benecke ; but that is not so. The contract in that case was not, as here, that the goods should be free delivered and paid for within a specified time, but that they should be paid for, without saying when they were to be delivered, within a specified time. The court, therefore, in that case decided, as I think rightly, that the buyer was entitled to a delivery of the goods at any reasonable time after the date of the con- ti'act, within the time specified ; aud that the seller was not entitled to paymeut of the price before the end of that time. But in this case the goods are to be delivered and paid for, that is, each event is to happen in fourteen days. I think, therefore, that the plaintiff's contention is right, and it was supported by the evidence given at the trial, that the seller had fourteen days within which he might deliver, and that he was entitled to call for payment at the period of delivery. If that con- struction be correct, the second objection made by Mr. Raymond ih answered, viz., that the contract itself passed the property in the goods and vested the right to possession in the defendant ; for that could not be if by the contract the goods were to be paid for on delivery, as the property could not pass unless payment were made. But it is further said that this action is not maintainable, inasmuch as there has been a complete delivery. Now, the facts are these: the plaintiff sells to the defendant a certain quantity of oil not ascertained ; he has at the time oil lying at the wharfinger's, and on the day following the contract he sends an order to the wharfinger to transfer certain of that oil to the defendant. The wharfinger accordingly makes the transfer in his books to the defendant, and gives the plaintiff's clerk a paper acknowl- edging the transfer ; the clerk goes with this paper to the defendant's counting-house, and demands a check in payment ; this is refused, but the defendant retains possession of the paper, and the jury find that the plaintiff's clerk did not intend to part with the paper without receiving a check. There was, therefoi'e, no intention to pass the property in the paper or the goods without payment ; and the question is, whether what was done amounted to a delivery. No doubt, if the SECT. VI.] FALKE V. FLETCHER. 213 vendor had given the vendee the transfer order, and the vendee had taken it to the wharfinger, and the latter had assented to the transfer, that would have bound the vendor. There must be shown to have been that kind of triangular contract adverted to in Williams v. Everett, 14 East, 582, where the agent of the one party becomes by agreement between all three the agent of the other. In this case there has been no such agreement of attornment: the wharfinger made no bax'gain with the vendee to hold for him, nor did the vendee make any bargain to accept the wharfinger as his agent. The transfer order was given to the vendee only on a condition with which he refused to comply, and there could be, therefore, no such acquiescence as was necessary to change the property in the goods in the hands of the wharfinger. It did not occur to me at the trial that there was the distinction which has been pointed out by the learned counsel for the plaintiff between this and the cases where the transfer order has been carried by the vendee to the wharfiuger ; but I am now of opinion that the nonsuit was wrong, and that the plaintiff is entitled to the verdict. ^ Rule absolute.^ FALKE V. FLETCHER. In the Common Pleas, January 16, 1865. [Reported in 34 Law Journal Reports, Common Pleas, 146.] This was an action tried, before Blackburn, J., at the summer assizes at Liverpool, 1864. The action was brought for the conversion of 1,000 tons of salt. The defendant pleaded not guilty, and that the salt was not the property of the plaintiff. It appeared at the trial that the plaintiff was a salt merchant, carry- ing on business at Liverpool, and that the defendant was the owner of a vessel called the " Savoir Faire." In the month of November, 1863, one De Mattos, a merchant in London, through the plaintiff, chartered the " Savoir Faire " to load a complete cargo of salt and proceed there- with to Calcutta ; the captain to apply to the plaintiff for cargo and custom-house l)usiness. It was proved that De Mattos was frequently in the habit of emi)loy- ing the plaintiff to charter vessels for the conveyance of salt, and that the course of business was for the [jlaintiff to purchase the cargo, and to load it in his own lighters and at his own expense. That in the course of doing so he took the mate's receipts, which were made out in his own name, and, when the whole cargo was loaded, he took bills of lading in his own name. These he sent to De Mattos, with invoices of the price of the salt, and received in exchange De Mattos's accept- 1 Williams, Crowder, and Willes, JJ., delivered concurring opinions. 214 FALKE V. FLETCHER. [CHAP. IL ances for the amount. The plaintiff charged no commission to De Mattos, but cliarged such a price for the salt as would remunerate hira for his trouble. This course was followed iu the present instance, until about 1,000 tons of salt were loaded, when the plaintiff, having heard that De Mattos had stopped payment, declined to load any more. The defend- ant thereupon tilled up the ship on his own account. The plaintiff demanded of the captain bills of lading in his own name for the salt on board in exchange for the mate's receipts. These the defendant re- fused to permit him to give, and the plaintiff thereupon sent the mate's receipts to his agents at Calcutta, with directions to them to claim the salt on its arrival. This was done, but the captain refused to deliver up the salt. The learned judge directed the jur}- that, if the property in the salt remained in the plaintiff, the sailing awa^- from Liverpool after the de- mand and refusal of the bills of lading, was a conversion by the defend- ant ; and that, if the plaintiff did not intend to part with the property' in the salt when he placed it on board, it remained in him as against De Mattos and also as against the defendant. The jury found a verdict for the plaintiff, with damages, £582 19s. 6c?., the damages being estimated on the assumption that there had been, in accordance with the direction of the learned judge, a conversion at Liverpool. JEdward James now moved for a new trial, on the gi'ound of mis- direction, and that the damages were wronglj- estimated, there having been no conversion until the vessel reached Calcutta. Erle, C. J. I am of opinion that there ought to be no rule in this case. The plaintiff' was in reality in the situation of an unpaid vendor. Having undertaken to procure salt as agent for De Mattos, he puts it on board a ship chartered by him for De Mattos, and takes the mate's receipts in his own name. Upon this the proper question was submit- ted to the jurj', namely, whether the plaintiff intended thereby to vest the property in the salt in De Mattos, or whether he intended to retain the control over it which he would have if such was not his intention ; and the jury have found that question in favor of the plaintiff. Then the question is, whether there was a conversion b}' tlie captain's sailing away from Liverpool and refusing to give the plaintiff bills of lading in his own name. B\' reason of his doing so, goods to which the plaintiff was entitled have been absolutely lost to him ; and I think the learned judge was right in saying that, under the circumstances, there was a conversion when the defendant caused the goods wrongfull_y to be taken out of the control of the plaintiff. Ride refused.^ ^ Williams and Willes, JJ., delivered concurring opinions, and Keating, J., also concurred. SECT. VI.] MOAKES V. NICHOLSON- 215 MOAKES V. NICHOLSON. In the Exchequer, May 31, 1865. {Reported in 34 Law Journal Reports, Common Pleas, 273, and in 19 Common Bench Reports, New Series, 290.] In this case the plaintiff sought to recover damages for the conver- sion of a cargo of coal ; and the following facts were proved at the trial. On the 9th of December, 1864, at Hull, a person named Pope bought of a person named Josse a quantity of coal, and a great deal of evi- dence, oral and written, was given at the trial in order to show the terms of the sale, the defendant contending that by the terms of this sale there was to be " payment in cash against bill of lading in the hands of Josse's agent in London," and that it was not the intention of the parties that the property in the goods should pass till payment. The coal at the time of the contract was lying undistinguished in a heap at Josse's yard, containing a much larger quantity than that contracted for, and it was to be sliipped on board a vessel which was chartered by Pope in his own name and on his own behalf, to carry it to London. On the 13th of December, whilst the whole or all but a very small por- tion of the coal was still undistinguished. Pope sold the coal he liad contracted for to the plaintiff on the Coal Exchange in London. The plaintiff resold on the same day at a higher price, and before action had paid Pope. By the 19th of December the coal was shipped, and the captain signed three bills of lading, stating the coal was to be delivered to "Pope or order" on being paid freight and demurrage as by charter- party. One only of these bills was stamped, and this Josse retained ; the second, together with an invoice and a letter announcing the load- ing, was sent on the 19th of December to Pope, who received them next day. Josse, not being able to get his money from Pope, sent the stamped bill of lading to the defendant, his agent, with directions to stop the delivery of the coal ; and the captain, under tlie defendant's directions, refused to deliver to those claiming through Pope, and the defendant himself took the cargo. The jury found that the sale was for cash, and the learned judge directed a verdict for the plaintiff, and gave tlie defendant leave to move to set this verdict aside and enter one for himself, on the grounds that on the facts admitted and proved the defendant was entitled to the verdict, that the defendant had a right to stop tlie coals hi transitu, and that neither Pope nor the plaintiff had any right to the property and possession of the coals. D. D. Keane and Barnard now showed cause. /. A. Russell and Thesiger, in support of the rule. Erle, C. J. I am of opinion that the rule to enter the verdict for the defendant should be made absolute. Moakes brings his action on •216 BAEBER V. MEYERSTEIN. [CHAP. II. the ground that the property in the cargo of coals seized by the defend- ant belonged to him. It appears that the coals were sold by Josse to Pope, and by Pope to Moakes. One material question is, whether Moalies could have an}' better title to the coals than Pope had. I think not. That is undoubtedly not clear as a general proposition ; because, if Josse had so dealt with Pope as to put him in the position of an os- tensible owner, by intrusting him with the documents of title, it might be that Moakes might have acquired a title to the coals, though his vendor, Pope, had none. But no such point can arise here, because bj^ the terms of the contract it was distinctl}' understood between Josse and Pope that the property in the coals was only to vest in the latter 'upon the payment by him of cash against the bill of lading; and this condition never was complied with. This being so, whilst the coals remained an unascertained quantity, Moakes entered into a contract with Pope, under which, in my opinion, he took precisely the same title as Pope had as between him and Josse. The sole question therefore is, what was the intention of the parties ? The property' could not pass out of Josse, unless there was a sale bj' him with the intention that the property should pass to the vendee. Now, it was clearly the intention of Josse — and the jur}' have so found — to retain the propert}' until his agent in London should receive the cash against the bill of lading. If that was the clear intention of Josse, the property did not pass. That this was the contract, is clear from the correspondence. The de- livery of the coals on board a ship chartered by Pope has no effect whatever in passing the propert}'. If the intention was that the ship should be regarded as the warehouse of Josse until the happening of the event contemplated, viz., the payment of the price, the putting the coals on board did not alter the position of the contracting parties. At the time Moakes made his contract with Pope, there had been no deliver}-, and no bill of lading existed. He therefore cannot sa}' that he was misled by Pope's being permitted to hold himself out as the true owner. Upon the whole, therefore, I think no property passed to Pope, and that the now plaintiff cannot be in a better position than Pope. Jiule absolute.^ BARBER y. MEYERSTEIN.^ In the House of Lords, February 21, 22, 1870. [Reported in Law Reports, 4 House of Lords, 317.] This was an appeal, under the Common Law Procedure Act, 1854, against a decision of the Court of Exchequer Chamber, by which a pre- vious decision of the Court of Common Pleas had been affirmed. The facts were these : In August, 1864, De Souza & Co., of Madras 1 Btles and Keatixg, J.I., flelivered concurrin,:^ opinions SECT. VI.] BARBER V. MEYEESTEIN. 217 shipped on board the "Acastus" 227 bales of cotton consigned for sale on commission to Azemar «&: Co., of London. There were three bills of lading making one set. They were in the usual form, except as to the last sentence, which concluded thus: "In witness whereof I, the said master of the said ship, have affirmed to three bills of lading, all of this time and date, one of which being accomplished, the others to stand void." In August, 1864, the vessel sailed for London. De Souza & Co. drew bills of exchange against this cotton upon Azemar & Co. for £3,000, £1,000, £1,000, and £1,000, to fall due between the 12th of Janu- ar}', 1865, and the 22d of March, 1865. These bills were duly accepted by Azemar & Co., and were then, with the three bills of lading, depos- ited with the London branch of the Chartered Mercantile Bank of India. At the end of 1864, Azemar & Co. transferred their business, including the consignment by the " Acastus," to one Abraham, who had formerly been in their employment. The " Acastus" arrived in London on the 31st of Januar}', 1865, and went into the St. Katheriue's Docks. On the 2d of Februarv Abraham made an entry of the cargo at Cotton's Wharf (which is a public suffer- ance wharf) in the form given b}' one of the Customs Acts, the 16 & 17 Vict. c. 167, s. 60. The Sufferance Wharf Act, 11 & 12 Vict. c. xviii., contains (cl. 5) the following enactment, important for the consideration of this case, that " all goods which after the passing of this Act shall be landed at any of the public sufferance wharves aforesaid" (of which Cotton's Wharf was one), " from, or out of, any ship within the port of London, and lodged in the custody of the wharfinger for the time being in the occupation of such wharf, either at such wharf or elsewhere, shall, when so landed, continue and be subject to the same lien or claim for freight in favor of the master and owner of the ship from or out of which such goods shall be landed, or of any other person interested in the freight of the same goods, as such goods were subject to whilst the same were on board such ship, and before the landing thereof; and the said wharfinger, his servants and agents, are hereby required, on due notice in writing in that behalf given by such master or owner or other person aforesaid to the said wharfinger, &c., to detain such goods in the ware- house of the said wharfinger, «&c., until the freight to which the same shall be subject as aforesaid shall be duly paid, together with the wharf- age rent and other charges to which tlie same shall have become subject and liaI)lo." There were two "stops" lodged against this cotton from the "Acastus," one by the Chartered Mercantile Bank of India, the other by the master for the freight. On the 9th of February Abraham instructed Barber & Co., as brokers, to sell the cotton, and they ob- tained from liim an order, in virtue of wliich they were allowed to take samples. On the 4th of March Abraliam gave a check wliich covered the sums due to the Chartered Mercantile Bank, and thereupon tlie bank delivered up to him the three parts of the bill of lading, and so put an end to the "stop" which had been lodged on account of the bank. On the same day he deposited witli IMcyorstcin (with whom he had other 218 BARBER V. MEYERSTEIN. [CHAP. II. transactions) one of the three pans of the bill of lading for the cotton b}- the "Acastus," together with the original consignment to Azeraar & Co., and thereupon Meyerstein gave to Abraham a check for £2,500, which was duly paid. Meyerstein asked for the second part of the bill of lading, and received it. He did not, however, ask for the third part, believing that the third part was retained by the captain of the vessel. Barber & Co. were wholly ignorant of these transactions, and on Mon- day, the Gth of March, Mr. C. Barber advanced to Abraham, by check, £1,500 on the cotton by the "Acastus," and on the next day, the 7th of March, made, by check, a farther advance of £500 upon receiving the third of the set of bills of lading (which had been fraudulently kept by Abraham), and on being at the same time informed of the fact that the stop order for freight had been removed. On the 11th of March Meyer- stein heard for the first time that the Barbers had been employed by Abraham to offer the cotton for sale. On that day -they lodged their third copy of the bill of lading at the wharf. On the same day Meyerstein obtained from Abraham a letter addressed to Messrs. Barber, requesting them to pay over to him " the surplus net proceeds of the undermentioned goods, after satisfying the advances you have made us (Abraham & Co.) upon the same." Among the goods thus mentioned was the cotton by the "Acastus." Meyerstein, on receiving this note, struck his pen through this item, sajing he did not want to have stolen goods transferred to him. He, however, forwarded the note to Messrs. Barber, and stated the fact of his making the advance of £2,500, though the evidence left it doubt- ful whether he stated the exact date at which it had been made. On the same da}^ Messrs. Barber wrote to Meyerstein : " We have this day received a letter from Messrs. Abraham & Co. requesting us to pay over to you the surplus net proceeds of 324 bales of cotton, as per memoran- dum at foot, which shall receive our attention in due course." This memorandum was a cop}'^ of that sent b}- Abraham, and the "Acastus" was struck out of it, — the total number of bales in each case being only 324, while if those of the "Acastus" had been retained in the list there must have been 277 added to that number. On the 13th of March the Barbers obtained from the wharfingers at Cotton's Wharf delivery war- rants made out in their own names for the 277 bales of cotton, which they sold to different purchasers, who received them under the warrants delivered by the Barbers to them. The Barbers claimed to satisfy them- selves in the first instance for their advances out of the proceeds of the sales. Meyerstein, who insisted that his claim took precedence of theirs, thereon brought his action against Barber & Co. The declaration was in the form of mone3' had and received, with a count for wrongful con- version. The defendants pleaded, never indebted, not guilty, and that the goods never were the plaintiff's. Issue was taken on all these pleas. At the trial, before Lord Chief Justice Erie, in June, 1866, he di- rected a verdict to be entered for the plaintiff for the whole sum he claimed, reserving leave for the defendants to move to enter a verdict for them. The rule was obtained, and was, on argument, discharged. SECT. VI.] BARBER V. MEYERSTEIN. 219 On appeal to the Exchequer Chamber, the judgment of the Court of Common Pleas was affirmed. This appeal was then brought. Sir B. JPalmer, Q. C, and Mr. Grantham, for the appellant. Sir G. Uonyman, Q. C, and J/r. Bridge {Mr. WatJcin Williams with them), for the respondent Meyerstein, were not called on. The Lord Chaxcellor (Lord Hatherley). In this case the House is called upon to reverse unanimous judgments of the Court of Common Pleas and of the Court of Exchequer Chamber. The effect of these judg- ments is this, — to determine that, as to the plaintiff, the indorsee for value of a bill of lading of goods which, at the time of its being indorsed to him, were landed at a sufferance wharf on the Thames, and were there subject to two stops put upon them (the one by the ship-owner for freight, the other by certain mortgagees), the securit}' so indorsed is available in preference to the claim of the defendants, who, subsequent!}' to such indorsement, obtained possession of the goods under the circumstances I am about to mention. A bill of lading was drawn up in a set of three, and after the indorsement of the first two of the three to the plaintiff had taken place, the consignee of the goods fraudulent!}' retained the third, and obtained advances from t!ie defendants on the security, in the first place, of this third, and proceeded afterwards to the wharf where the goods had been deposited, and after the production of this third bill of lading obtained the removal of a stop which had been put upon the goods for freight. I should have before mentioned the previous removal on the part of the mortgagees (the directors of the Chartered Baniv of India) of their stop in respect of tlieir mortgage. Possession of the goods was, under those circumstances, obtained by tlie defendants, the persons who, on receiving this third bill of lading thus fraudulently retained by the consignee, made to him an advance on the goods repre- sented b}' this bill of lading. The question has really turned upon one point, and I may almost say upon one point alone, namely, whether or not the bills of lading had fully performed their office, and were discharged and spent at the time that the plaintiff took his security. Whether, in other words, the land- ing of those goods at the sufferance wharf in the name of the consignee, but subject to the stop which was put upon them by the shi[)-owner, and the stop put upon them by the mortgagees, was, or was not, a de- livery which had exhausted the whole effect of the bill of lading. That, I think, is the single point to which the case becomes reduced. It appears to me, my lords, that there are one or two points of law which must be taken to be clearly established, although very able efforts, employed with considerable ingenuity and resource, have been directed to the shaking of those well-established points of law. I refer particu- larly to the very able argument we have heard from Mr. Grantham in this case with reference to the first step, if I may so call it, in the pro- ceeding, namely, the fact of the first assignment for value of a bill of lading when the goods are not landed, but are still at sea. Now, if any- thing could be supposed to be settled in mercantile law, I apprehend it 220 BARBER V. MEYERSTEIN. [CHAP. II. u-ould be this, that when goods me at sea the parting with the bill ot lading, be it one bill out of a set of three, or be it one bill alone, is parting with the ownership of the goods. Mr. Grantham has raised this argument upon the frame of the bill of lading itself, which I apprehend is in the common form where three bills are given. The form of the bill of lading to which he specially referred, and upon which he founded the argument I now advert to, is this, that the shipper undertakes to deliver these goods, the cotton, to the Souzas or order, or to their assigns, he or they paying the freight for the goods at the rate there mentioned ; and then, at the end of the document we have these words, " In witness whereof I, the master of the ship, have affirmed to three bills of lading, all of this tenor and date, one of which being accomplished, the others to stand void." The argument has been this, that the bill of lading has not accomplished its office until not only the goods are landed, but the freight is paid, and the whole matter which is the subject of the contract of the ship-owner has been achieved ; and that, accordingly, if that be law, it follows that if one bill of lading be assigned while the ship is at sea, and a second bill of lading be as- signed to a second person, fraudulently of course, and a third bill of lading be assigned to a third person, also fraudulentk, of course, it be- comes simply a matter of expedition and race between the several par- ties who have taken those ditferent assignments of the bills of lading ; because until the goods have actually been landed and fully delivered, each bill of lading, according to the argument, is to be considered as of equal force until one of the bills has been, according to the argument, accomplished. Now, I apprehend that it would shake the course of proceeding be- tween merchants, as sanctioned by decided cases (which the learned counsel admitted to have been decided, and never yet to have been altered or reversed), if we were to hold that the assignment of the bill of lading, the goods being at the time at sea, does not pass the whole and complete ownership of the goods, so that any person taking a sub- sequent bill of lading, be it the second or be it the third, must be con- tent to submit to the loss which would result from that state of facts. I apprehend that no decision can be found to the effect that any person taking an assignment of a bill of lading, knowing that others existed, is to be held to have been guilty of fraud simply from the fact of his so acting. No authority, at all events, has been cited for that proposition. And no authority has been cited at the bar to show that the transaction IS not entire and complete when once the bill of lading has been assigned, as respects, at all events, goods in transitu, whether the assignment be by mortgage or by sale. If it were by sale other considerations would intervene which would give still greater efficacy to the assignment of the goods without delivery or possession. But when the vessel is at sea and the cargo has not yet arrived, the parting with the bill of lading is parting with that which is the symbol of property, and which, for the purpose of conveymg a right and interest in the property, is the prop- SECT. VI.] BARBEE V. MEYERSTEIN. 221 erty itself. It appears to me that to shake any conclusion of that kind would be entirely to annihilate the course of mercantile procedure which has existed for a long period of time, — far longer, probably, than 1 can at this moment accurately state. That being so, the judges have reasonably assumed that proposition as a point of undeniable law. Then, if tlie property so passes when the goods are at sea, the whole question resolves itself into this : What is the eflect of the assignment of the bill of lading under the circumstances of this case, when the goods were not at sea at the time when the inter- est was passed, but were at a sufferance wharf in the name and by the order of the consignee, Abraham, who represented the original con- signees, the Souzas, subject to the stop-order in respect of freight, and subject to the stop-order given to the chartered bank. Now the circumstances are briefly these as to the dates : On the 4th of March, the goods being in the situation I have described, Abraham, the person who has been guilty of this fraud, not being then in posses- sion of the bills of lading himself, inasmuch as all three were at that time in possession of the bankers, applies to the plaintiff Meyerstein for a loan ; he obtains money from Meyerstein ; he first draws a check to meet the claim at the bank, a check provided for by the moneys ad- vanced to him b}- Meyerstein, and then he obtains the three bills of lading from the bank. And on the same 4th of March, having these three bills of lading for a few minutes or a few hours in his possession, he does nothing with them in the way of claiming possession of the goods ; he makes no use of them for that purpose, but he at once pledges two of these bills for value to Meyerstein. And that pledge being so completed, Meyerstein is in possession of these two bills with no other charge or claim whatever upon the goods they represented except the claim for freight, the freight being still unsatisfied. The mortgage had been cleared off, and he had become the owner of the property by this transaction, and he remained the owner sul)ject to the payment of the freigiit. Then afterwards, fraudulently, Abraham enters into farther dealings with his brokers. His brokers are aware that the goods have arrived. They obtain a partial order from Abraham, by which they are enabled to obtain a sample of the cotton in question ; but they decline in the first instance to make him any advance. He proposes to obtain an advance on the bill of lading simpHclter, which they decline to make. But they were afterwards induced to make the advances when they had seen the goods themselves at the wharf, and when steps had been taken by Abraham for procuring money to enable him to discharge the stop which existed upon the goods for the freight. The stop which existed in respect of the mortgage had been already discharged, and the prop- erty, therefore, became api)arcntly at his disposal. Tlie defendants, being ignorant of the transaction with Meyerstein, on the 11th of March obtained possession of the goods, and on the same 11th of March Me}'- erstein, for the first time, discovers the fraud which has been perpetrated upon himself. When he wishes to obtain possession of the goods he 222 BARBER V. MEYERSTEIN. [CHAP. II. [iiuls that they have been removed. And hence, of course, a contest arises between the two parties. Then in that state of things tlie question that arises is this : The goods, it is urged, were at home when Abraham was empowered bj- the Act of Parliament to give directions that the goods should be placed on the wharf as the goods of him, the consignee. But, however, the ques- tion arises whether these goods could ni truth be said then to be at home. It is said that, at all events when for those few hours the three bills of lading were in possession of Abraham, and the goods were at home, as all the symbols of property were also in the hands of Abraham, there- fore the symbol and the thing symbolized had become united, and that, in truth, the whole matter might be said to be disposed of, Now is it so? Can it be said that when for those few hours those doctuments were in the hands of Abraham, he had the control and proprietorship of the goods ? Certainly when he first gave directions for their being warehoused in his name he was in no sense proprietor. He had neither the bills of lading, nor had he discharged the freight, nor had he in any other way put himself in a situation to entitle him to demand the goods. But now, having the bills of lading, supposing he had been minded to go down to the wharf to demand the goods, what would have happened ? He would have found a stop placed upon the goods for the freight. And what would have been his position? By virtue of the oth clause of the particular local Act (11 & 12 Vict. c. xviii.) referring to this subject, ha would have found that he could not obtain any obedience to any deliv- ery order which he might think [)roper to give, and that he could not obtain any warrant of delivery, because there had been placed upon the goods tills stop for the freight. The Act expressl}' enacts that when a stoppage has been put at the right time, namely, before the issue of an}' warrant for delivery, or the acceptance of any order, then no wharfinger shall be authorized to issue any warrant, or to accept an}' order, for the deUvery of any goods thus subject tc a lien for freight. Accordingly, therefore, the goods would not have been delivered to him had he made use of tliose bills of lading instead of delivering them over to Meyerstein, and in that sense, undoubtedly, the goods were not at home as far as he was concerned. Then, the first proposition of law being clear, that an indorsement of the bill of lading carries with it the property in the goods when the goods are at sea, the next proposition of law that we have to con- sider is this, laid down by all the judges who have delivered their opin- ions in this case, and, as it appears to me, correctly laid down by them. It is stated by Mr. Justice Willes in his very elaborate judgment, in which he says : " I think the bill of lading remains in force at least so long as complete deliver}' of possession of the goods has not been made to some person having a right to claim them under it." Mr. Justice Keating says, in the same way, that he considers that " there can be no complete delivery of goods under a bill of lading until tliey have come to the hands of some person who has a right to the possession under it." SECT. VI.] BARBER V. MEYERSTEIN. 223 And afterwards, in the Exchequer Cliamber, Mr. Baron Martin, putting the ease on somewhat different grounds, says: "For many years past there have been two symbols of property in goods imported ; the one llie bill of lading, the other the wharfinger's certificate or warrant. Until the latter is issued by the wharfinger the former remains the only s^'m- bol of property in the goods. When, therefore, Abraham delivered the bill of lading to the plaintiff on the 4th of March, 1865, as a security for the advance then made to him, such delivery amounted to a valid pledge of the goods, and the plaintiff thereby acquired a right to hold them as against Abraham and all persons claiming title thereto under him.*' The principle seems to be the same, according to the view which Ml'. Baron Martin takes, which is this : There has been adopted, for the convenience of mankind, a mode of dealing with property- the possession of which cannot be immediately delivered, namely', that of dealing with symbols of the propert}'. In the case of goods which are at sea being transmitted from one country to another, you cannot deliver actual pos- session of them, therefore the bill of lading is considered to be a S3'mbol of the goods, and its delivery to be a deliver}' of them. When they have arrived at the dock, until they are delivered to some person who has the right to hold them the bill of lading still remains the onlj- sym- bol that can be dealt with b}- way of assignment, or mortgage, or other- wise. As soon as delivery is made, or a warrant for deliver}' has been issued, or an order for deliver}- accepted (which in law would be equiva- lent to delivery), then those symbols replace the symbol which before existed. Until that time bills of lading are effective representations of the ownership of the goods, and their force does not become extinguished until possession, or what is equivalent in law to possession, has been taken on the part of the person having a right to demand it. It appears to me that that is the legal sense of the transaction. The ship-owner contracts that he will deliver the goods on the payment of freight.. He discharges his contract when he delivers the goods. But, unless he chooses to waive his rights, he is not bound so to deliver the goods, or to hand them over to the person who is the original consignee to whom he has contracted to make the delivery, until all the conditions on which he contracted to deliver them are fulfilled. One of those con- ditions is, that the freight should be paid ; and until the freight has been paid he is not bound to make the delivery. Mr. Justice Willes explains what is the effect of these various Acts of Parliament. These Acts of Parliament are not intended to deprive the ship-owner of the riglit which he has to say that he will not part with the possession of the goods until freight is paid. Accordingly, the local Act first enacted that there should be a power on the part of the ship- owner to relieve himself from the responsibility, which might be ex- tremely inconvenient to all parties, of keei)ing the goods on board, when either the consignee was not ascertained, or when, if ascertained, there were some laches on his part in demanding the delivery of the goods. In such a case the ship-owner, by depositing them in a warehouse, placed 224 BARBER V. MEYERSTEIN. [CHAP II. them in such a condition that if iheir owner could not be ascertained tlie goods sliould be considered as if tl.jy were still at sea, in the abso- lute possession of the master to all intents and purposes. But if the owner of the goods could be ascertained, and the only question was the question of freight, still the Act of Parliament provided that the ship- owner should be protected, that he should not be bound to hand over the goods absolutely, but that he should hand them over sub rnodo, with the full right of retaining his lien on the goods themselves, and with the right of preventing them being dealt with or removed until that lien should be satisfied. The legal effect of the proceeding is this, that the proprietor or consignee may require the goods to be landed at a wharf, and to be warehoused in his name, but subject to this condition, that the ship-owner still retains his interest in the cargo until his charge for freight has been defrayed. If he gives notice of that charge prior to an}' act being done by which the ownership of the goods is changed, prior to the acceptance of an order for delivery, and prior to the issue of a warrant for delivery, then the ship-owner's lien holds and attaches itself to those goods, and the goods cannot be removed ; the bills of lading cannot be considered as having been fully spent or exhausted, because there remains an important part of the contract unfulfilled on the part of the consignee, namel}', payment of the freight in respect of "which the contract was entered into. That seems to me to be the whole basis of the judgment at which the learned judges arrived in the courts below, and which, as I before stated, was their unanimous conclusion. But against it several objections have been urged. It is said that a frightful amount of fraud may be perpe- trated if persons are allowed to deal in this way with bills of lading drawn in sets, if you allow efficacy be given to the first assignment of one of those bills, to the detriment of persons who maj' take, for value, subsequent assignments of the others. All that we can say is, that such has been the law hitherto, and that the consequences of the supposed evil, whatever the}- may be, have not been considered to be such as to counterbalance the great advantages and facilities affordf.d b}- the trans- fer of bills of lading. There is no authority or reason for holding that the person who first obtains the assignment of a bill of lading, and has given value for it, shall not acquire the legal ownership of the goods it represents. It seems to be required by the exigencies of mankind. It may be a satisfaction to be told by Mr. Justice Willes (though it is a matter upon which I put no reliance), that other nations concur with us in holding that (whatever inconveniences there ma}' be attending it), the person who gets the first assignment for value is the person to be preferred. The reasoning of the learned judges in this case establishes clearly these two propositions : First, that the holder of the first assignment for value obtains a priority over those who obtain possession of the other bills. And, secondly (following the reasoning of Mr. Justice Willes), '-The wharfinger under these circumstances was, at the lowest, SECT. VI.] BARBER V. MEYERSTEIN. 225 the common agent for the ship-owner and for the consignee or holder of the bill of lading, — agent for the consignee or holder, upon his pro- ducing the bill of lading showing that he was entitled to the goods, and upon his paying the freight, to transfer the goods into his name, and to deliver them to him, or give him a warrant for them, — and agent for the ship-owner to retain possession of the goods and to permit no one to exercise any control over them until the claim for freight had been satisfied. During this period, therefore, the bill of lading would not onh", according to the usage, and for the satisfaction of the wharfinger that he was delivering to the right person, be a symbol of possession, and practically the key of the warehouse, but it would, so. far at least as the ship-owner was concerned, retain its full and complete operation as a bill of lading, there having been no complete deliver}- of possession of the goods." The other learned judges take the same view ; and I apprehend that the correct view in substance is this, — that this being the possession of the wharfinger, the bill of lading remains in force so long as complete delivery and possession has not been given to some person having the right to claim such delivery and possession. As to the argument founded on the possibility of fraud, I agree very much with one of the learned judges, Mr. Justice Willes, who says that as to any argument upon that subject, " all arguxnents founded upon the notion that the court is to pronounce a judgment in this case which will protect those who deal with fraudulent people, are altogether beside the facts of this case, and foreign from transactions of this na- ture." I am afraid that the protection of parties against fraud is a matter of difficulty with which the legislature must cope, as far as it can possibly do so, from time to time, when frauds of a serious charac- ter are practised; but the courts of law, which have to administer the law as it exists, cannot alter their course of proceeding because those who ought to do that which is right and just to their neighbors find means of defrauding them in spite of all the protection which the law ma}' have thrown around the innocent holders of property. Judicature has no power to interfere with the course of proceeding in such cases. It must be left to the legislature alone. But, on the other hand, we should consider that our mercantile laws, which are founded on long usage, have been found to work well for the general convenience of those engaged in those large adventures which are familiar to the enter- prise of tliis country, and tliat although occasional inconvenience may have been caused by the fraudulent behavior of some parties, yet these laws have, upon the whole, been felt to operate beneficially. The principles which, as I have stated, form the foundation of the judgment in the present case are, that the parting with the symbol of property the possession of which cannot be delivered is the parting with the property itself; and that persons who have not a complete owner- ship and possession of the property cannot be said to liave such a title to that pioperty as to divest the operation of the symbol to give a title toit, until something occurs which brings the symbol and the property 226 SHEPHERD V. HARBISON. [CHAP. II. itself into contact, — and that for the purpose of so bringing the prop- erty and the symbol into contact, there must be a complete concurrence of title in the person who holds the symbol and the person who has the right to demand the propert^^ ; and until that happens the symbol, as in the present case, has not exhausted its ofHce. I am, therefore, of opinion that the learned judges have come to the right conclusion, and I have to move your lordships to affirm the two decisions which are complained of in this appeal. Judgments of Court of Common Pleas and of Court of Exchequer Chamber affirmed, and appeal dismissed with costs?- SHEPHERD V. HARRISON. In the House of Lords, April 27, 28, 1871. [Reported in Law Reports, 5 House of Lords, 116.] This was a proceeding in error on a judgment of the Court of Exchequer Chamber, which had confirmed a previous judgment of the Court of Queen's Bench, Law Rep. 4 Q. B. 196-493. The cause was tried before Mr. Justice Mellor, at Manchester, in 1868, and a verdict was taken for the plaintiff, subject to a case. The plaintiff was a merchant carrying on business at Manchester under the style of John Shepherd & Co. The defendants were the owners of the screw steamer "Olinda," of Liverpool. There had been other dealings between the plaintiff and Paton, Nash, & Co., of Pernam- buco, and on those dealings there was a credit of £3,000 in favor of the plaintiff. The first dealing of the plaintiff with Paton, Nash, & Co. in the article of cotton appeared to have taken place in 1865. On that occasion the plaintiff received from George Paton & Co., of Liverpool, who were the agents in this countr}' for Paton, Nash, & Co., of Pernam- buco, a letter dated the 3d of May, 1865, in which they said : "Here- with we beg to hand you bill of lading 240 bags cotton, per 'Spra}-.' We presume our Pernambuco friends have made a mistake in sending it under cover to us. We also enclose draft on 3'our good selves for £2,072 9s. 6c?., which we will thank 3'ou to return with the needful." The bill was returned accepted, and in due time paid. There seemed to have been another order for cotton in 1865, which, on account of the state of the markets, was not executed ; but in the course of the cor- respondence Paton, Nash, & Co. wrote, on the 14th of May, 1866 : "You do not mention how we are to reimburse ourselves — whether we are to discount sales, or to draw on you." On the 7th of September, 1807, the plaintiff sent to Paton, Nash, & Co. a letter desiring them to purchase 1 Lords Chelmsford and Westbury delivered concurring opinions Lord .Co LONSAY also concurred. SECT. VI.] SHEPHERD V. HARRISON. 227 for him 1,000 bales of cotton at a price specially mentioned. Paton & Co., on the 28th of September, wrote back acknowledging the order, and adding : " You do not mention whether part of the order is to go against your funds lying here, but we suppose you intend it as a remittance." To which, on the 25th of October, 1867, the plaintiff answered: "Pray don't make the mistake you did before about our funds in your hands ; they never were intended to be applied to cotton purchases, but to wait instructions." Paton, Nash, & Co. proceeded to execute the order, and purchased 750 bales of cotton, sending 339 by the ship "Capella" and 208 by the ship "La Plata." On sending this cotton Paton & Co. despatched a letter, dated the 25th of October, 1867, which ended with these words : " On reading over your order again, we are impressed that you wish us to draw for the amount of invoice, and not to deduct net proceeds in our hands, and we therefore shall value on you on forward- ing bills lading." In another letter of the same dtite they wrote to sa}- that they had sent the cotton, "and beg now to enclose invoices 339 bales per ' Capella,' costing £1,616 8s. 8d.; 208 bales per ' La Plata,' £883 7s. Id. ^Ye have drawn upon you as per note at foot for the same, to which we beg j'our protection." Two drafts were enclosed, which were drawn in favor of George Paton & Co., of Liverpool. The letter ended thus : "The bills lading will be handed over to you by Messrs. George Paton & Co." The invoice accompanying this cotton descril)ed it as shipped "per Norwegian brig ' Capella' for Liverpool, on account and risk of Messrs. John Shepherd & Co." There was a similar invoice as to the cotton shipped per " La Plata." The bills of lading, together with the two bills of exchange, were for- warded by Paton, Nash, & Co. to George Paton & Co., and on the 16th of November George Paton & Co. wrote to the plaintiff- "We beg to hand you herewith bills of lading for 339 bales of cotton per ' Capella,' and 208 bales of cotton per ' La Plata,' received this morning from our Pernaml)uco friends. We also enclose bills on your good selves for £1,616 8s. 8d. and £883 7s. Id., to which please do the needful, and return to us in course." These bills were accepted, and returned to George Paton & Co. in a letter in which the plaintiff complained that some of the cottons had not been bought according to his instructions, and added: "In case, therefore, of any loss arising from the sale of these, we must claim against you." Some correspondence, not in a friendly tone, occurred between the i)Liintiff and George Paton & Co. on the subject of these cottons. The remaining 200 bales purchased by Paton, Nash, & Co. were shipped by them on board the "Olinda." On the 12th of November, 1867, Paton, Nash, & Co. wrote a letter to the plaintiff, in which they said: " I^nclosed i)lease find invoice and bill lading of 200 bales cotton, shipped per 'Olinda,' S.S., costing £861 2s. 7d., which we hope may prove correct and satisfactory. We have advanced the brig 'Capella' £55 6s. Gd., as per receipt enclosed, to be deducted from the freight on your cotton, and on which you have 5% commission, and insurance £2 15s. 4d., to cover the advance. We have 228 SHEPHERD V. HAKUISON. [CHAP. II. therefore drawn upon yon for £916 9s. Id. in favor of Messrs. George Paton & Co., to which beg your protection." The letter and invoice «-ere forwarded direct to the plaintiff. The bill of lading and the bill of exchange were forwarded to George Paton & Co., who sent them to the plaintiff. The invoice referred to in this letter was "Invoice of 200 bales cotton shipped per 'Olinda,' S.S., for Liverpool, on account and risk of Messrs. John Shepherd & Co." The bill of lading was in the usual form, and was thus indorsed : — "Pernco., 13 Novr., 1867, per pro Paton, Nash, & Co., A. M. C. Soares, Geo. Paton & Co." The "Olinda" arrived at Liverpool on the 5th of December, and on that day George Paton & Co. wrote to the plaintiff: "Our Pcrnanibuco letters to the 12th nit. are just to hand, and we beg to enclose B lading for 200 bales cotton shipped by Messrs. Paton, Nash, & Co., per 'Olinda,' 8.S., on j'onr account. We hand also their draft on your good selves for costs of the cotton, to which we beg your protection (£916 9s. Id.)." On the 6th of December, 1867, the plaintiff answered : "Your favor of yesterday is received, with enclosures. On reference to invoices and bills of exchange which we have accepted, we find that the}' have been drawn in excess of the price mentioned in order; there is also a quan- tity styled 'Mediums' that we did not order at all. These, with the hostile position you have taken with regard to the 208 bales ex ' La Plata,' stand in the wa}' of our accepting the bill of exchange now enclosed. We shall place the 200 bales ex ' Olinda' in another broker's hands, and soon as we learn we shall inform 3"ou their opinion of them." The plaintiff retained the bill of lading, and sent back the bill of exchange unaccepted, whereupon it was protested b}' George Paton & Co. The plaintiff sent the bill of lading to his brokers, with instructions to pay the freight and obtain the cotton. The brokers went to the defendants and paid the freight, and obtained a deliver}- order ; but the delivery was stopped by the intervention of George Paton & Co., who held the duplicate bill of lading, and who undertook to indemnifj^ the defendants. The court was to have the same power as a jury to draw any infer- ences of fact. The Court of Queen's Bench gave judgment for the defendants, and this judgment was affirmed in the Exchequer Chamber. The plaintiff thereupon brought error. /Sir R. Palmer., Q. C, and 3Ir. T. H. Jordan, for the plaintiff in error. Mr. Holker, Q. C, and 3Ir. Gxdlij., for the defendants in error, were not called on. Lord Chelmsford. M}* lords, ^'our lordships, I believe, consider it unnecessar}' to hear any argument on the part of the defendants. The question for you to determine is, whether the defendants, the owners of SECT. VI.] SHEPHEED V. HARRISON. 229 the vessel " Oiinda," were bound to deliver to the plaintiff 200 bales of cotton which were shipped by Paton, Nash, & Co., from Fernambuco, and invoiced "on account and at the risk" of the plaintiff, and whether they are liable to an action for the non-delivery. The question is one entirely of fact, depending upon the circumstances stated in the special case, and upon inferences which the courts below were at liberty to draw from those facts. [His lordship stated them, and he referred par- ticularly to this letter in which it was said: "On reading over your order again we are impressed that 3'ou wish us to draw for the amount of invoice, and not to deduct net proceeds in our hands, and we there- fore shall value on you on forwarding bills of lading."] That, therefore, was the course of dealing which thenceforth was to take place between the parties with regard to consignments made by Paton, Nash, & Co., on the orders of Mr, Shepherd. Accordingly, after the cotton was purchased by Paton, Nash, & Co., parts of it were sent in two vessels called the " Capella" and " La Plata," and the other part in the "Oiinda," on which the present question arises. Now, w4ien the cotton was shipped on board the " Capella" and the " La Plata," bills of lading were sent (and this is a most important cir- cumstance), not to Mr. Shepherd, but to the agents of Paton, Nash, & Co., Messrs. George Paton & Co., of Liverpool, and the letter of the 25th of October announcing that, says: "The bills lading will be handed over to you by Messrs. George Paton & Co." Accordingly, George Paton & Co. sent the bills of lading to the plaintiff, and also enclosed the bills for acceptance in a letter of the 16th of November, in which they say : "We beg to hand 30U herewith bills of lading for 339 bales cotton, per 'Capella,' and 208 bales cotton, per 'La Plata,' received tills morning from our Pernambuco friends. We also enclose bills on your good selves for £1, GIG 85. M. and £883 7s. If?., to which please do the needful and return to us in course." Did Mr. Shepherd, the plaintiff, then believe that he would not be entitled to receive the cotton upon these bills of lading so sent to him, without his accepting the bills of exchange? Whv, what does he say in his letter? He says : "Your favor of the IGth instant is to hand, bring- ing two bills for acceptance, which, as desired, we now return accepted, but with the reservation as to the mediums and seconds not being bought according to our instructions." And then he makes an apology for not having sent the bills of exchange immediately, for he says : " Your let- ter did not arrive on Saturday till after oHices were closed, say 1 p.m." It appears to me that this is very important indeed, as showing the nature of tlie transactions between the parties, to consider what was done with regard to a portion of this order, and that the bills of lading were sent to the agents of Paton, Nash, & Co., and not to the plaintiff, apparently preserving to Paton, Nash, & Co. the jus disponendi over these goods, and not passing the actual absolute property in them to the plaintiff. Then, with regard to the 200 bales of cotton in question, the course 230 SHEPHERD V. HARRISON. [CHAP. II. of proceeding appears to have been this : The}' were shipped on board the defendant's vessel, the " OUnda ;'' and a letter of the 12th of Novem- ber was written, on which stress has been laid with regard to one passage which it contains: "Enclosed please find invoice and bill of lading of 200 bales cotton shipped per 'Olinda.'" Hence, it is said that there was evidently the intention, originally at all events, to send the bill of lading to the plaintiff, and not to the agents of Paton, Nash, & Co. But I confess it appears to me that the former dealings with regard to the other parcels of cotton sent by the " Capella" and the "La Plata," trans- mitting the bills of lading upon those occasions to the agents of Paton, Nash, & Co., and not to the plaintiff, ver}- strongly lead me to the con- clusion that it was a mistake to say that they intended to enclose the bill of lading. Probably when they came to look at the letter they said : "Oh, this will not do; we don't intend to send the bill of lading to tbe plaintiff," and therefore they altered the destination of it, by sending it to their agents instead of to the plaintiff. Then the agents, George Paton & Co., write on the 5th of December to the plaintiff: "Our Pernambuco letters to 12th ult. are just to hand, and we beg to enclose B/ lading for 200 bales cotton shipped b}' Messrs. Paton, Nash, & Co., per 'Olinda,' S.S., on your account. We hand also their draft on your good selves for costs of the cotton, to which we beg your protection." Now, what must Mr. Shepherd have understood, having regard to previous dealings with respect to the other portions of the cotton ? what must he have understood by this letter of George Paton & Co., the agents, but this, that he was not to deal with the bill of lading unless he accepted the bill of exchange which was sent at the same time? I think there can be no doubt whatever that that would be the fair and proper impression made by this letter on his mind, having regard to previous transactions. Jn answer to that, he writes to them : "On reference to invoices and bills of exchange which we have accepted, we find that they have been drawn in excess of price mentioned in order ; there is also a qualitj* styled 'mediums' that we did not order at all. These, with the hostile position you have taken with regard to the 208 bales ex 'La Plata,' stand in the wa}- of our accepting the bill of exchange now enclosed. We shall place the 200 bales ex 'Olinda' in another broker's hands, and as soon as we learn we shall inform 3'ou their opinion of them." Well, he did so. He sent back their bill of exchange unaccepted, and then placed the bill of lading in his own brokers' hands, Messrs. Eason, Barry, & Co. It has been said that upon that bill of lading, if the plaintiff's agent had acted promptly, he might and would have received, and would have been entitled to receive, the cotton ex the " Olinda." What would have been the consequence of that, it is unnecessary for us to say. Under these circumstances, if it is clear that he was not entitled to use the bill of lading witliout accepting the bills of exchange, it is possible that an action of trover might have been brought against him had he got SECT. VI.] SHEPHERD V. HARRISON. 231 possession of the cotton, and that the damages would have been the amount of the bills of exchange which he was bound to accept. But it is unnecessary for us to consider that question. Before any use had been made of the bill of lading George Paton & Co. interfered ; they produced their bill of lading, and demanded possession of the goods under an indemnity, and the goods were given up to them. The question, then, is, whether, under these circumstances, the plain- tiff was entitled to the possession of the goods. The question with regard to the property may perhaps be a different question ; but the question now is, whether he was entitled to have the possession of the goods on the production of the bill of lading, and whether the defendants are liable to an action of trover for refusing to deliver the cotton to him, and for delivering it to George Paton & Co. ]S'o\v that being, as I have already said, a question of fact, and of inference to be derived from the circumstances stated in the special case, we have had tlie opinion of two courts, — I should say the unanimous opinion, notwithstanding some slight doubt intimated by Baron Cleasby, — of nine judges on the subject, that the plaintiff, under the circum- stances, was not entitled to the possession of the cotton. But it is said on the part of the plaintiff that the inference of fact is only to be drawn with reference to decisions which have been made with regard to documents which pass the property in goods ; and we have been referred to cases to show that where goods are shipped on account of and at the risk of a consignee the absolute property in the goods vests in him, subject only to a right on the part of the consignor to stop m transitu. Some strong cases have been cited on that subject, and par- ticularly two before Lord EUenborough (Walley v. Montgomery, 3 East, 585, and Coxe v. Harden, 4 East, 211, 217). In the case of Coxe v. Harden the consignee had obtained possession of the goods, which. Lord EUenborough said (4 East, 211, 217), removed the difficulty which stood in the way of the consignees, namely, the circumstance of the captain liaving signed the bills of lading in such terms as did not entitle them to call upon him for a delivery under their bill of lading, which was unindorsed ; showing, therefore, that upon a shipment with an invoice on account and at the request of the consignee, the consignor may impose conditions on the delivery of the possession. Now, that this is always a question of intention appears to me to be decided by the case of Moakes v. Nicholson, 19 C. B. (n. s.) 290. In that case coals were sold at Hull, and shipped on board a vessel char- tered by the buyer. If that had been a case of delivery of goods to a carrier by land, of course they would have vested in the buyer. The coals were to be paid for in cash. One of three bills of lading making the coals deliverable to Pope, the buyer, or order, was sent to hin) with an account of the price of the coals. He not having paid the amount, the agent of the seller gave notice to the master of the vessel not to deliver the coals, and he accordingly refused. An action w.is brought bythe person to whom Pope, the buyer, had sold the coals, and had 232 GABAKRON V. KREEFT. [CHAP. II. handed the bill of lading. It was held that he was not entitled to recover. Chief Justice Erie said: "The property could not pass out of Josse (the seller) unless there was a sale by him with the nitention that the property should pass to the vendee. Now, it was clearly the intention of Josse — and the jury have so found — to retain the property until his agent in London should receive the cash against the bill of lading. If that was the clear nitention of Josse the property did not pass." My lords, in a book to which my noble and learned friend near me (Lord Cairns) has referred me, and which appears to be very ably writ- ten, on the sale of personal property, the authorities on the subject of reservation of the jtcs disj^onendi are all collected, and the whole matter is summed up clearly and distinctly in the following passage: "The foUoA'ing seem to be the principles established by the foregoing authori- ties : first, where goods are delivered by the vendor, in pursuance of an order, to a common carrier for delivery to the buyer, the delivery to the carrier passes the property, he being the agent of the vendee to receive it, and the delivery to him being equivalent to a delivery to the vendee ; secondly, where goods are deUvered on board of a vessel to be carried, and a bill of lading is taiien, the delivery by the vendor is not a delivery to the buyer, but to the captain as bailee for delivery to the person indicated by the bill of lading as the one for whom they are to be carried. This principlo runs through all the cases and is clearly enunciated by Baron Parke and by Mr. Justice Byles " in two cases to which reference is there made. Under these circumstances I apprehend your lordships can entertairi no doubt whatever that the judges of the Court of Queen's Bench and the judges of the Court of Exchequer Chamber came to a right conclusion upon the facts which were before them, and that the plaintiff was not entitled to recover in this action against the defendants for the non- delivery to him of the cotton in question. I therefore advise your lordships that the judgment of the court below should be affirmed. Judgment of the Court of Exchequer Chamber affirmed} GABARRON v. KREEFT. In the Exchequer, July 7, 1875. [Reported in Law Reports, 10 Ercheqner, 274.] Bramwell, B.'^ It will be convenient in this case brief!}' to state the facts, as I appreciate them. The defendants bought from one Munoz all the ore of a certain mine in Spain, to be shipped by Munoz f. o. b. at Cartagena, on ships to be chartered by the def(>ndants or by him. The ore was to be paid for by bills against bills of lading, or on the 1 Lords Westbury, Colonsay, and Cairns delivered concurring opinions. '^ On a feigned i.s.sue to try title, a verdict had been entered for the defendant, and pursuant to leave re.served a rule nixi had heen obtained to .show cause why the verdict should not be set aside and entered for the plaintiffs on the ground that the property in the ore passed to them or that the defendants were estopped from disputing that it so passed. SECT. VI.] GABAKRON V. KREEFT. 233 execution of a charter, and on a certificate that there was enough ore in stock to load the vessel chartered. On being so paid for, the ore was to be the property of the defendants. Various vessels had been loaded, and others chartered, and various payments made up to March, 1872, when the "Trowbridge," one of the chartered ships, arrived at Cartagena. The payments that had been made at that time exceeded in amount the price of all the ore shipped and to be shipped in all the vessels chartered and not loaded ; so that had Munoz shipped ore on the "Trowbridge," he would have been entitled to no payment from the defendants in respect of it. He had ore which he could and ought to have so shipped, taking bills of lading to the order of the de- fendants. Instead of doing this, he, on the 8th of April, and before any ore was put on board the " Trowbridge," picked a quarrel with the defendants, telegraphed to them that he would not load the "Trow- bridge " on their account, and though they telegraphed to him threaten- ing him if he did not, he loaded the " Trowbridge" and took bills of lading making the shipment to be by one Sabadie, and the cargo deliv- erable to Sabadie's order. It is agreed he had at the time of shipment no intention to ship for the defendants. In giving these bills of lading the captain was clearly justified, as the charter said he was to sign bills of lading as presented. Sabadie was a sham ; the ore was the ore of Munoz. Munoz indorsed Sabadie's name on the bill of lading, and then his own, and then pledged it to the plaintiffs. The question is, whether the plaintiffs or defendants are entitled to the cargo. If the cargo ever belonged to the defendants, it is certain that Munoz could confer no title unless by estoppel or otherwise, as hereafter men- tioned. This is clear on principle, and is shown by Ogle v. Atkinson, 5 Taunt. 759. Did, then, the ore ever belong to the defendants? Certainly not, till it was paid for. For the agreement was not a sale of specific property, but an agreement to sell all the ore to be produced. Did it become the property of the defendants on being paid for? The contract says it shall. But it seems to me impossible that it can be so. There is nothing to distinguish the ore paid for from that not paid for, certainly there is no evidence that the ore put on the " Trow- bridge" was specially ear-marked as the subject of the cargo for it or any otlier ship. No certificate in relation to it was given as pro- vided by the contract. It is impossible to suppose that if this ore had been stolen while in the possession of Munoz, though after it was paid for, the loss would have been the defendants', or that the defendants would not have had a right to reject this ore and object to its being loaded, or that Munoz might not have loaded other ore. These con- siderations seem to show that no property passed in this ore before it was put on board tlie ship. Did that cause the property to pass? Now, it is clear that Munoz had no right to put any part of that ore on the ship except for the purpose of its being dehvered to the defendants. On the otlier hand, it is equally clear to me, that had he said to the captain when loading, " I load this on my own account, and not on the 234 GABARRON V. KREEFT. [CHAP. II. defendantsV' ^ind the captain had taken it on board, the loading, to- gether with the otlier facts, would not have passed the property. But it does not appear that he said anytking till he presented the bill of lading, and then he showed that he had not loaded for the defendants, but for his own purposes. If the i)roperty had passed on taking the bill of lading made out as it is, the loading was, in my opinion, nuga- tory. The captain knew no better, and was justified in giving the bill of lading as he did, but his doing so did not take the property out of the defendants, if in them, any more than it would if the ore had been bought anci paid for by the defendants, stored in their 3'ards, and shipped by Munoz as a mere agent. Ogle v. Atkinson, 5 Taunt. 759. The question, then, is reduced to this, did the property pass on actual shipment, the shipper having no right to ship except to pass the prop- erty, and having no right to retain possession for any lien for the price or otherwise, but taking, when he does take it, a bill of lading, deliver- able otherwise than to the defendants, to whom it ought to have been made deliverable. If this matter were res integra, there would be strong ground for con- tending it did. It would be impossible to suppose that Munoz could be heard to say, " I was doing what was right if shipping as your property, wrong if shipping as mine, but it is the latter I did." If Munoz could not say this, neither, it is argued, could any one claiming title under him. It is true that Munoz had told the defendants that he would not ship on their account, but they had equally told him he should, and should ship on no other, and he shipped. Suppose goods not specific were sold to be delivered by the seller into the buyer's cart when sent for, and the seller said, "I shall not put those goods in 3-our cart unless you pay more than the agreed price," and the buyer said, "You shall, and I shall send my cart," and did, and the goods were put in it by the seller, it is clear that the seller could get no more than the agreed price. I know that different considerations may arise as to a cargo, but the question as between Munoz and the defendants is the same. But the matter is not res Integra^ though there is no case precisely in point. EUershaw v. Magniac, G Ex. 570 «., certainly is not. There the shipper had shipped a different cargo to what he had agreed to ship ; the captain taking it on board knew that. He was bound to tell the shipper to take it out or to give him bills of lading deliverable to him. I am aware that a cargo of linseed was to be shipped, and that some Unseed was shipped. But the plaintiff had a right to reject a part cargo. The case may be tested thus. If a bill of lading of the linseed had been given deliverable to the plaintiff, he might have refused to receive it. Still that case shows that a shipper i'ightfull}' shipping for a buyer, can nevertheless get a bill of ladmg deliverable to himself Neitlier is Turner v. Trustees of the Liverpool Docks, 6 JLx. 543 ; 20 L. J. (Ex.) 393, in point. For there the shippers had a right of lien on the goods till the}' were paid for in the agreed manner. But that case also shows that goods may be put by the seller on the buyer's ship with SECT, yl] GABARRON v. kreeft. 235 nothing, as appears, said at the time, and that nevertheless the seller may get a bill of lading deliverable to himself. It does not appear in that case that the shippers at the lime of shipment said anything about the form of the bill of lading to be given, or reserved to themselves any right as to it. Then there is the case of Falke v. Fletcher, 18 C. B. (n. s.) 400 ; 34 L. J. (C. P.) 146, in which Willes, J. (p. 409), uses expressions which go to show that a shipper may ship saying nothing, and then demand a bill of lading in exchange for the mate's receipt in such form as he pleases. Wait v. Balder, 2 Ex. 1, is also not in point, because there the vendor had a right of lien. But Parke, B., said : " The delivery of the goods on board the ship was not a delivery of them to the defend- ant, but a delivery to the captain to be carried under a bill o'f lading, and that bill of lading indicated the person for whom they were to be carried." He said the same thing in Van Casteel v. Booker. 2 Ex. 691 ; 18 L. J. (Ex.) 9. In Moakes v. Nicholson, 19 C. B. (n. s.) 290 ; 34 L. J. (C. P.) 273, It was held that retaining the bill of lading, though made out in the buyer's name, prevented the passing of the property. There, however, the vendor had a lien. Mr. Benjamin, on Sales (p. 306), thus sums up the result: " Where goods are delivered on board of a vessel to be carried, and a bill of lading is taken, the delivery by tlie vendor is not a delivery to the buyer, but to the captain as bailee for delivery to the person indicated by the bill of lading, as the one for w hom they are to be carried." The cases seem to me to show that the act of shipment is not completed till the bill of lading is given ; that if what is shipped is the shipper's property till shipped on account of the shipowner or charterer, it remains uncertain on whose account it is shipped, and is not shipped on the latter's account till the bill of lading is given deliverable to him. It seems to me, therefore, that in this case the property never passed to the defendants, and the plaintiffs are entitled to recover. I feel bound by the authorities, which perhaps establish a more convenient state of law than would exist if bills of lading might be got deliverable to one person while the property was in another. As to the question of estoppel, viz., that the defendants, having authorized the signing of bills of lading as presented, have authorized an act by which Munoz has been able to deceive the plaintiffs, I am of opinion that would not avail tlie plaintiffs if the property in the ore had passed to the defendants. Tiie defendants no more enabled the com- mission of a fraud than they would have done if the ore had been their property, never that of Munoz, in their stores, and Munoz only an agent for shipment, and the charter in the present form. What the defend- ants have done is, supposing the property is theirs, to put it in the pos- session of Munoz, and so make liim appear the owner. P>ut if I hand my ■watch to a man to keep for me, thougli I in a sense enable him to appeal to be the owner, yet if he sells or pledges it, I do not lose my property. I think judgment should be for the plaintiffs.* 1 Cleasbt, B., and Kelly, C B., delivered concurring opiniona. 236 GLYN, ETC. CO. V. THE EAST INDIA, ETC. DOCK CO. [CHAP. II. GLYN, MILLS, CURRIE, & CO. v. THE EAST AND WEST INDIA DOCK CO. In the House of Lords, August 1, 1882. [Reported in 7 Appeal Cases, 591.] Appeal from the judgment of the Court of Appeal (6 Q. B. D. 475) ^ reversing a judgment of Field, J. (who tried the case without a jury), in favor of the appellants (5 Q. B. D. 129). The facts which are set out in the judgments of Field, J., and Brett, L. J., are shortl}^ as follows : — Sugar was shipped in Jamaica and consigned to Cottam, Mortan, & Co., merchants in London. On April IG, 1878, the master signed a set of three bills of lading marked respectively "First," "Second," and "Third," mailing the sugar deliverable to Cottam & Co. or their assigns, freight payable in London. Eacli bill contained the clause, " In witness whereof the master or purser of the said ship hath affirmed to three bills of lading, all of this tenor and date, the one of which bills being accomplished, the others to stand void." During the voyage Cottam & Co. on the 15th of May, 1878, indorsed in blank the bill marked "First" to the appellants, London bankers, in consideration of a loan. The ship arrived at London on the 27th of Ma}-, and on the 28th the master landed the sugar and deposited it with the respond- ents in their docks, lodging with them a copy of his manifest in a printed form supplied by the respondents. In the manifest the names of Cottam & Co. appeared as consignees and as entering the goods. At the foot was a printed clause : " I declare the above to be a true cop3' of the manifest of the cargo of the above ship, and hereby autho- rize the I^ast and West India Dock Company to deliver the same to the consignees as above or to the holders of the bills of lading." This was signed b}' the master, the words " the consignees as above or to " being first struck out. On the 29th the master lodged with the re- spondents a written notice " pursuant to 25 & 26 Vict. c. 63 s. 68, &c." to detain the sugar till payment of the freight. On the 31st Cottam & Co. brought the bill marked " Second," not indorsed, to the respondents, who entered Cottam & Co. in their books as pi'oprietors of the sugar. 1 Bramwell and Baggallay, LL. J., were of opinion that the judgment of Field, J., should be reversed. Brett, L. J., delivered an elaborate dissenting opinion. SECT. VI.] GLYN, ETC. CO. V. EAST INDIA, ETC. DOCK CO. 237 On the 7th of June, the freight having been paid b}' Cottara & Co., the stop for freight was removed. In July the respondents, bona fide and without notice or knowledge of any claim by the appellants, delivered the sugar to Williams & Co., who held delivery orders signed by Cot- tam & Co. Cottam & Co. having gone into liquidation in August the appellants demanded the sugar from the respondents, producing the bill of lading marked " First." The respondents not being able to dc liver, the appellants brought this action against them claiming damages for the value of the sugar. Sir F. Herschell^ S. G., and Benjamin^ Q. C. [Barnes with them), for the appellants. Sir H. Giffard, Q. C, and Cohen, Q. C. {Pollard with them), for the respondents. Lord Blackburn. My lords, this is one of the cases in which diffi- cult}' arises from the mercantile usage of making out a bill of lading in parts. There is since the decision of Lickbarrow v. Mason, 1 Sm. L. C. 8th ed. p. 753, now nearly one hundred years ago, no doubt that, before there was any statute affecting the matter, the bill of lading was a transferable document of title, at least to the extent, as was said by Lord Hatherle}' in Barber v. Mej'erstein, Law Rep. 4 H. L. 326, that, " when the vessel is at sea and the cargo has not 3-et arrived, the parting with the bill of lading is parting with that which is the symbol of property, and which for tiie purpose of convening a right and inter- est in the pro[)erty is the property' itself." And the verj' object of making the bill of lading in parts would be baffled unless the deliver}' of one part of the bill of lading, duly assigned, had the same effect as the delivery of all the parts would have had. And the conse- quence of making a document of title in parts is, that it is possible that one part may come into the hands of one person who bona fide gave value for it under the belief that he thereby acquired an interest in the goods, either as purchaser, mortgagee, or pawnee, and another part may come into the hands of another person who, with equal bona fides^ gave value for it under the belief that he thereby acquired a similar interest. This cannot well happen, unless there is a fraud on the part of tiiose who pass the two parts to different persons such as would in most cases bring them within the grasp of the criminal law, and from the nature of the transaction such a fraud must speedily be detected ; the cases, therefore, in which it occurs are not very frequent. Nevertheless, it docs at times occur, and there are cases in our courts, where the rights of the two holders have had to be considered. The last of those was Barber v. Meyerstein, Law Rep. 4 H. L. 317, in this House ; and so far as that decision extends, the law must be taken to be settled. I have never been able to learn why merchants and shipowners con- tinue the practice of making out a bill of lading in parts. I should have thought that, at least since the introduction of quick and regu 238 GLYX, ETC. CO. V. EAST INDIA, ETC. DOCK CO. [CIIAP. IL lar communication bj" steamers, and still more since the establishment of the electric telegraph, eveiy purpose would be answered b}' making one bill of lading onl}- which should be the sole document of title, and taking as many copies, certified by the master to be true copies, as it is thought convenient ; those copies would suffice for every legitimate purpose for which the other parts of the bill can now be applied, but could not be used for the purpose of pretending to be holder of a bill of lading already parted with. However, whether because there is some practical benefit of which I am not aware, or because, as I sus- pect, merchants dislike to depart from an old custom for fear that the novelt3' ma^' produce some unforeseen effect, bills of lading are still made out in parts, and probably will continue to be so made out. So long as this practice continues, it is of vast importance not to unsettle the principles which have been already settled ; and when a new case has to be decided it is desirable to be very cautious as to what principles are applied. The facts in the present ease bear in many respects a close resem- blance to those in Barber v. Meyerstein, Law Rep. 4 H. L. 317, but the}' are not quite the same ; and the question, on the solution of which in my opinion the decision in the present case ought to depend, did not arise in Barber v. Meyerstein, Law Rep. 4 H. L. 317, thougli Lord Westbury did in that case mention it when he says (Law Rep. 4 H. L. 336) : " There can be no doubt therefore that the first person who for value gets the transfer of a bill of lading, though it be onl}- one of a set of three bills, acquires the property ; and all subsequent dealings with the other two bills must in law be subordinate to that first one, and for this reason, because the propert}' is in the person who first gets a transfer of the bill of lading. It might possibly happen that the shipowner having no notice of the first dealing with the bill of lading, may, on the second bill being presented by another part}-, be justified in delivering the goods to that party ; but although that may be a dis- charge to the shipowner, it will in no respect affect the legal ownership of the goods." That point did not arise, and Lord Westbury did not express an}- opinion on it. He only mentions it so as to show that it was not decided either way. In the present case Cottam & Co., on the loth of May, 1878, applied in writing to Glyn & Co., bankers in London, for an advance, on the security of certain bills of lading. From the terms of the application it is plain that the bankers were to have the property, with a power of sale, in the goods represented by the l)ills of lading, so far as was necessary to secure their advance, and that, subject thereto, Cottam & Co. were to remain owners of all the rest of the interest in the goods and might do, as owners, everything consistent with the property thus given to tlie bankers. I do not think it necessary to express any opinion on a question much discussed by Brett, L. J., I mean whether the property which the bankers were to have was the whole legal property in the goods, Cottam & Co.'s interest being equitable only, or whether the SECT. VL] GLYX, etc. CO. V. EAST INDIA, ETC. DOCK CO. 239 bankers were onh' to have a special property as pawnees, Cottam & Co. having the legal general propert}'. Either way the bankers had a legal property, and at law the right to the possession, subject to the shipowners' lien, and were entitled to maintain an action against any one who, without justification or legal excuse, deprived them of that right. Cottam & Co. delivered to the bankers, as part of their securit}', a bill of lading for twenty hogsheads of sugar by the "Mary Jones," sliipped by Elliot in Jamaica, deliverable to Cottam & Co. or to their assigns, indorsed in blank by Cottam & Co. This bill of lading bore on the face of it, distinctly printed, the word " First," and at the end had the usual clause " In witness whereof the master of the ship hath affirmed to three bills of lading, all of this tenor and date, the one of which bills being accomplished, the others to stand void." There could be no doubt therefore that the bankers had distinct notice that there were two other parts of the bill of lading. It appears in Barber v. Meyerste'in, Law Rep. I H. L. 317, that in a similar transaction the Chartered Mercantile Bank, before making a similar advance to Abra- ham, had insisted on having all three parts of the bill of lading deliv- ered to them, and so no doubt might Glyn & Co. have done here ; but I infer that Abraham, who soon after was guilty of a very gross fraud, was not a person who could ask any reliance to be placed on his hon- esty ; and that where the person depositing the bill of lading is of good repute, a banker would rather run the risk, in most such cases nominal, of the depositor having committed a fraud, than the risk of offending a good customer by making inquiries which might be construed as imply- ing that they thought him capable of committing a gross fraud. How- ever this be, it appears tliat Glyn & Co. made no inquiry, and were content to take the one part. And as in fact neither of the other parts had been transferred, the security which Glyn & Co. had was not im- peached by such a prior transfer. And as the " Mary Jones " was then at sea, the question mainly discussed in Barber v. Meyerstein, Law Hep. 4 H. L. 317, docs not arise in this case. The "Mary Jones" arrived on the 27th of May, and the next day the master reported her at the Customs, and the goods were there, for Customs purposes, entered by Cottam & Co. as owners. All this was quite right, and did not require the production of any bill of lading ; it coukl and ought to have been done as well if the other parts of the bill of lading had been delivered to Glyn & Co., or had remained locked u[) in the desk of the shipper Elliot in Jamaica. The master appears to have been in a hurry to get his vessel empty, and to have resolved to avail himself of the provisions of the Merchant Shipping Act, 1862, sects. 66 to 78. He had not, in strictness, any right to do so till default had been made in making entry, which never was the case at all, or till default had been made in taking delivery within seventj'-two hours after the report of the ship, which would not in this case be till the 31st of May. But the master, apparently being 2-40 GLYN, ETC. CO. V. EAST INDIA, ETC. DOCK CO. [CIIAP. IL in a hurry, on the 28th of Maj-, prepared and signed a notice to the East and West India Docks to "detain all the undermentioned goods which shall be landed in your docks, now on board the ship ' Mar}' Jones' from Jamaica, whereof I am master, until the freight due thereon shall be duly paid or satisfied, in proof of which you will be pleased to receive the directions of James Shepherd »& Co. The whole cargo as per bills of lading." This stop was lodged with the dock company on the 29th of May. The dock company, it appears, were in the habit of requiring the master to sign an authority at the foot of a copy of the manifest. And in this case the copy manifest was signed and lodged on the 28th of May. It is not necessary to inquire what would have happened if, be- fore the seventy-two hours had expired, a duly authorized person had tendered the freight and demanded deliver}-, for no such thing occurred. And I think, as soon as the seventy-two hours had elapsed, the dock company held the goods under the provisions of the Act, just as much as if they had not been landed till then. The counsel for the respon- dents wished your lordships to draw the inference of fact that all this must have been done, not under the provisions of the Act, but by virtue of some agreement to which Cottam &, Co. were a part}'. I do not see any evidence of this ; and looking at the manner in which the admissions were made, so as to apply not only to the " ]\Iary Jones" but to two other ships mentioned in the 6th and 11th paragraphs of the statement of defence, I should, if necessary, draw the inference that it was not the fact. Then on the 31st of May, on which the seventy-two hours had ex- pired, Cottam & Co. brought down and showed to the dock company a bill of lading with the word " second " distinctly printed on the face of it, and in every other respect precisely similar to the bill at that time in the hands of Glyn & Co. It was not indorsed. The clerk of the dock company entered in the books of the company that Cottam & Co. were the propi'ietors of the goods, and marked the bill of lading with bis initials and the date, so as to show that he had seen it, and returned it to Cottam & Co. It was proved, what I think would have been inferred without proof, that after this the dock company would, accord- ing to their ordinary practice, have delivered the goods when the stop for freight was removed to the order of Cottam & Co., unless, in the mean time, they had got notice that another bill of lading was, as the witness says, out. It appeared in Barber v. Meyerstein, Law Rep. 4 H. L. 317, that in the case of Abraham, whose honesty they seem to have distrusted, the Chartered Mercantile Bank had lodged a stop; and so might Glyn & Co. have done in the present case. They did not do so. And the stop for freight having been removed the dock company, though not till the month of .July, delivered the goods to the order of Cottam & Co., not having then either notice or knowledge of the fact that one part of the bill of lading had been indorsed to Glyn & Co., but having from the SECT. VI.] GLYN, ETC. CO. V. EAST INDIA, ETC. DOCK CO. 241 form of the bill itself notice that there were two other bills of lading either of which Cottam & Co., if dishonest enough, might have indorsed and delivered for value to some other part}'. The real question, I think, is, whether the dock compan}- were under such circumstances justified in or rather excused for delivering to Cot- tam & Co.'s order, though if they had had notice or knowledge of the previous transfer of the bill of lading to Glyn & Co. it would have been a misdelivery, for which the}' would have been responsible. I do not think the dock company held the goods by virtue of any contract. They held them under the statute subject to a dut}' imposed bj- the statute, to deliver them to the person to whom the shipowner was bound to deliver them. And, as I think, they were justified, or rather excused, b}' an3'thing which would have justified or excused the master in so delivering them. So that, I think, the very point which has to be de- cided is that raised by Lord Westburj', namelj', what will excuse or justify the master in delivering. The case of Barber v. Meyerstein, Law Rep. 4 H. L. 317, settles that the mere fact that there were parts of the bills in tlie hands of the mortgagor or pledgor does not form a justification or excuse for an innocent purchaser from the mortgagor or pledgor, whichever he was, taking the goods. If it could be proved that the other parts of the bills of lading were left in the hands of the mortgagor or pledgor, in order that he might seem to be the owner, though he was not, a purchaser from the person in whose hands they were thus left might either at com- mon law or under the Factors' Acts have a good title ; but there is not in this case, any more than there was in Barber v. Meyerstein, any evidence to raise such a question. But the master is not in the position of a purchaser from the holder, or person supposed to be the holder, of a bill of lading. He is a per- son who has entered into a contract with the shipper to carr^' the goods, and to deliver them to the persons named in the bill of lading — in this case Cottam & Co. — or their assigns, that is, assigns of the bill of lading, not assigns of the goods. And I quite assent to what was said in the argument that this means to Cottam & Co., if they have not assigned the bill of lading, or to the assign if they have. If there were only one part of the bill of lading, the obligation of the master under such a contract would he clear, he would fulfil the contract if he delivered to Cottam & Co. on tlicir producing the bill of lading unin- dorsed ; he would also fulfil his contract if he delivered the goods to any one producing the bill of lading with a genuine indorsement by Cot- tam & Co. lie would not fulfil his contract if he delivered them to any one else, though if the person to whom he delivered was really entitled to the possession of the goods, no one might be entitled to recover damages from him for that breach of contract. But at the request of the shipper, and in conformity with ancient mercantile usage, the mas- ter has aflfirmcd to three bills of lading all of the same tenor and date, the one of which bills being accomplished the others to stand void. 242 GLYN, ETC. CO. V. P:AST INDIA, ETC. DOCK CO. [ciIAP. II. In Fearon u. Bovvers, 1 Sm. L. C. 782, decided in 1753, Lee, C. J., is reported to have ruled '• that it appeared by the evidence that accoid- iuo" to the usage of trade tiie captain was not concerned to examine who had the best right on the different bills of lading. All he had to do was to deliver the goods upon one of the bills of lading, which was done. The jur}^ were therefore directed by the Chief Justice to find a verdict for the defendant." Lord Tenterden says (I quote from the 5th edition of Abbott on Shipping, the last published in his lifetime, part 3, chap, ix., sect. 24), "But perhaps this rule might upon further consideration be held to put too much power into the master's hands." It is singular enough that one hundred and twent^'-nine v'cars should have elapsed without its having been necessarj' for any court to say whether this rule was good law. It was suggested on the argument with great probability that, especially after the caution given immedi- ately after the passage I have read (part 3, chap, ix., sect. 25), masters have declined to incur the responsibility of deciding between two persons claiming under different parts of the bill of lading, so that the case has not arisen. If this rule were the law, it would follow a fortiori that if the master was entitled to choo.se between two conflicting claims, of both of wliich he had notice, and deliver to either holder, he must be justified in delivering to the only one of which he had notice. So tliat I think it is necessary to consider whether it is law, and I do not think it can be law, for the reason given by Lord Tenterden ; it puts too much power in the master's hands. Where he has notice or prob- ably even knowledge of the other indorsement, I think he must deliver, at his peril, to the rightful holder or interplead. But where the person who produces a bill of lading is one who — cither as being the person named in the bill of lading which is not in- dorsed, or as actually holding an indorsed bill — would be entitled to demand delivery under the contract, unless one of the other parts had been previously indorsed for value to some one else, and the master has no notice or knowledge of anything except that there are other parts of the bill of lading, and that therefore it is possible that one of them may have been previously indorsed, I think the master cannot be bound, at his peril, to ask for the other parts. It is not merely that, as Bramwell, L. J., says (6 Q. B. D. 492) "it is the undoubted practice to deliver without inquiry to any one who produces a bill of lading," i. e. when no other is brought forward, and that the evidence given in Fearon v. Bowers, 1 Sm. L. C. 8th ed. 782, must have proved that much, though it seems also to have proved more ; but that, as it seems to me, unless this was the practice, the business of a shipowner could not be carried on, unless bills of lading were made in only one part. I cannot say on this anything in addition to what Baggallay, L. J., says (6 Q. B. D. pp. 502, 503), and I quite assent to his reasoning there ; I think also that the only reasonable construction to be put upon the clause at the end of the bill of lading is that the shipowner stipulates that he shall not be liable on this con- SECT, VI.] GLYN, ETC. CO. V. EAST INDIA, ETC. DOCK CO. 243 tract if he bonajide, and without notice or knowledge of anything to make it wrong, delivers to a person producing one part of the bill of lading, designating him — either as being the person named in the bill if it has not been indorsed, or if there be a genuine indorsement as being assign — as the person to whom the goods are to be delivered. In that case, as against the shipowner, the other bills are to stand void. Even without that clause I should say that the case falls within the principle laid down as long ago as the reign of James I. in Watts V. Ognell, Cro. Jac. 192. That depends, says Willes, J., in De Nicholls V. Saunders, Law Rep. 5 C. P. 594, " upon a rule of general juris- prudence, not confined to choses in action, though it seems to have been lost sight of in some recent cases, viz., that if a person enters into a contract, and without notice of any assignment fulfils it to the person with whom he made the contract, he is discharged from his obligation." The equity of this is obvious. It was acted upon in Townsend v. Inglis, Holt, N. P. 278, where goods lodged in the docks by Reed & Co. were by them sold to Townsend and a delivery order was given by Reed & Co. to Townsend. Townsend paid for the goods to Reed & Co.'s brokers, who misappropriated the money. Then Reed & Co, countermanded the order and finally removed the goods from the docks before the dock compau}' had any notice either of the sale to Townsend or of the delivery order given to him. Townsend brouglit trover against Reed & Co. and the dock company. Gibbs, C. J., a very great commercial lawyer, left to the jary the question as to whether Townsend was, on the evidence as to previous dealings, justified in paying the broker, which the jury found he was, and the plaintiff had a verdict against Reed & Co., but he directed a verdict for the dock co.m- pan}', saying, " Though the skins were the propert}' of the plaintiflJs from the completion of the bargain, the compau}' had made no transfer, and had no notice of their possessor}' title wlien they delivered the skins to Reed & Co." And in Knowles v. Horsfall, 5 B. & Aid. 139, Abbott, C. J., treats this as indisputable. Goods, part of which were in a ware- house, had been sold by Dixon to the plaintiff. Abbott, C. J., says, as to tlie parcel in the w'arehouse, "If the plaintiff had given notice of the sale to the warehouse keeper, the latter would not have been justified in delivering them to any other order thfin that of the plaintiff, but not having received an}' such notice, tlie warehouse keeper would have been justified in delivering them to the order of Dixon, who placed them there." 1 know of no case in which this principle has been departed from intentionally, and though it is very likely that it may have been sometimes lost siglit of, I do not know to wliat cases Willes, J., alludes. The sum involved in this case is not large, but the amounts advanced by those who lend money on the security of bills of lading, and the value of the goods for which warehouse keepers and wharfingers become responsible, are enormous. Which is the more important trade of the two I do not know, but the decision of this case must have an eflfect on both, and it is therefore of great importance, and requires careful '244 GLYN, ETC. CO. l\ EAST INDIA, ETC. DOCK CO. [ciIAP. IL consideration. And that being so, I have felt some diffidence in differ- ing from tlie two learned judges who had below come to a different result. Mr. Justice Field seems (5 Q. B. D. 135) to haA'e taken a view of the facts as to the way in which the goods came into the hands of the dock company' different from that which I have taken, and con- sequently to have thought that the very important question suggested bj' Lord Westburj' did not arise. Lord Justice Brett thinks (6 Q. B. D. 488) that the master cannot be excused as against the first assignee of one part of the bill, who has the legal right to the property, for deliver- ing under any circumstances to one who produces another bill of lading bearing a genuine indorsement, unless he would be excused in all cir- cumstances ; in other words unless Fearon v. Bowers, 1 Sm. L. C. 8th ed. 782, is good law to its full extent. In this I cannot agree. I think, as I have already' said, that wliere the master has notice that there has been an assignment of another part of the bill of lading, the master must interplead or deliver to the one who he thinks has the better right, at his peril if he is wrong. And I think it probabh' would be the same if he had knowledge tiiat there had been such an assignment, though no one had given notice of it or as yet claimed under it. At all events, he would not be safe, in such a case, in delivering without further in- quiry-. But I think that when the master has not notice or knowledge of anything but that there are otlier parts of the bill of lading, one of which it is possible ma}' have been assigned, he is justified or excused in delivering according to his contract to the person appearing to be the assign of the bill of lading which is produced to him. And I further think that a warehouseman taking the custody of the goods' under the provisions of the Merchant Shipping Act, 1862, s. 66, &c., is under an obligation cast upon him by the statute to deliver the goods to the same person to whom the shipowner was b^' his contract bound to deliver them, and is justified or excused b}' the same things as would justify- or excuse the master. And I find, as a fact, that this was the position of the respondents here. And, on this ratio decidendi, I think that the appeal should be dismissed, with costs. Jud(jment appealed from affirmed, and appeal dismissed with costs} 1 Lords Selborxe, Cairxs, O'Hagan, Watsox, and Fitzgerald delivered concurring opinions. Lord Cairxs, at the end of his opinion, paid : " It is said that this will cause inconvenience to those who advance money upon bills of lading. I do not think that it need do so in the least. There are, at all events, three courses open to them, either of which they may take. The mercantile world may, if they think right, alter the practice of giving bills of lading in more parts than one. That would be one course which might be taken. But even supposing that the bill of lading is in more parts than one, all that any person who advances money upon a bill of lading will have to do, if he sees, as he will see, on the face of the bill of lading, that it has been signed in more parts than one, will be to require that all the parts are brought in, that is to say, that all the title deeds are brought in. I know that that is the practice with regard to other title deeds, and it strikes me with some surprise that any one would advance money upon a bill of lading without taking that course of requiring the delivery up of all the parts. If the person advancing the money does not choose to do that, another course which he may take is, to be vigilant and on the alert and to take SECT. VI.] SEWELL V. BUEDICK. 245 SEWELL V. BURDICK. In the House of Lords, December 5, 1884. [Reported in 10 Appeal Cases, 74.] Appeal b}' the defendants from an order of the Court of Appeal (13 Q. B. D. 159) reversing a decision of Field, J. The facts are fully set out in the judgment of Field, J., 10 Q. B. D. 363. Briefly they were as follows : — In September, 1880, Nercessiantz shipped machinery on the respon- dent's ship to be carried from London to Poti in the Blaclv Sea, under bills of lading wliereby the goods were made deliverable to the shipper or assigns, freight, primage, and disbursements to be paid at destination, in default the owners or agents to have an absolute lien on the goods and liberty to sell by auction and retain freight and all charges. The bills of lading, indorsed in blank, were, in November, 1880, deposited by Nercessiantz with the appellants, bankers in Manchester, as security for a loan of £300 advanced by them to Nercessiantz. The ship mean- while had arrived at Poti in September, and the goods were landed and warelioused at the Russian custom-house in October. Nercessiantz dis- appeared, and after a year the good.s, in accordance with Russian law, were sold to pa}' custom-house duty and charges, and realized no more than enough for that purpose. Meanwhile the appellants had indorsed the bills of lading to their agents at Tiflis, with instructions to protect their interests, and had informed the shipowners that if the goods were sold to pay freight, &c., the appellants claimed all the proceeds over and above tlie amount due to the shipowners for freight, &c., but the appel- lants never claimed delivery of the goods. The respondent having brought an action for £174 8s. dd. for freight and charges against the appellants as indorsees of the bills of lading. Field, J., who tried the case without a jury, gave judgment for the defendants. 10 Q. B. D. 3G3. The Court o? Appeal (Brett, INI. R., and Baggallay, L. J., Bowen, L. J., dissenting) set aside this judgment and gave judgment for the plaintiff for the amount claimed. 13 Q. B. D. 159. The defendants appealed. Sir F. Hi^rschell, S. G. {DancJaoerts with him), for the appellants. C. Hall, (.1- C, and Edvjyn Jones., for the respondent. Lord Blackburn. My Lords, the judgment of Field, J., was re- care that lie i.s on the spot at the first arrival of the ship iu the dock. If those who advance money on bills of lading do not adopt one or other of those conrses, it appears to me that if they suffer, they suffer in consequence of their own act." In Sanders v. McLean, 11 Q. 15. D. 327, the Court of Appeal decided that where by a contract of sale payment was to he made " in exchange for hills of lading," tlie pur- chaser was bound to pay when a duly indorsed bill of lading was tendered to him, although the bill of lading was drawn in triplicate, and all the parts were not tendered or accounted for. 246 SEWELL V. BUUDICK. [CHAP. IL versed by the order now under appeal. The case was tried before him without a jury, and I thinlv it is necessary to see what he had to deter- mine. There was no question between vendor and vendee, nor of stop- page in transitu, raised, for there was neither a vendor nor a stoppage. The law and decisions as to stoppage in transitu might be relevant in construing the Statute 18 & 19 Vict. c. Ill, but did not otherwise affect the rights of the parties. It will be seen by reference to the statement of claim and of defence that it was not suggested that the defendants were, at tlie time the goods were shipped, in any way interested in the goods ; nor that they M'ere, either as undisclosed principals or otherwise, parties to the contract in the bill of lading until it was delivered to them, after the ship had sailed and the goods were in the hands of the shipowners to be carried under the bill of lading and were not yet delivered, with an indorsement in blank by Nercessiantz, the consignee named in the bill of lading. I do not think that, either at the trial or on the argument, it was at all disputed that at common law the remed}' of the shipowner under a bill of lading was by enforcing his lien upon the goods, or by bringing an action on the contract against an}' one who, at the time when the goods were shipped, was a party to the bill of lading, either as being on the face of it a contracting party, or as being an undisclosed principal of such a party. In either of these cases he might be si^ed as having been from the beginning a party to the contract. Some attempts had been made to say that the contract in a bill of lading might, under some circumstances at least, be transferred to an assignee in a manner analogous to that in which the contract in a bill of exchange was transferred by the indorsement of the bill of exchange ; but I think since the decision in Thompson v. Domiu}-, 14 M. & W. 403, in 1845, it has been undisputed law that under no circumstances could any one not a party to the contract from the beginning sue on it in his own name. Any action on the contract at common law must be brought in the name of an original contractor, and no action could be brought on the contract against one who was not liable to be sued as an original contractor. But ten years later the 18 «fe 19 Vict. c. Ill, was passed. The pre- amble states this as one of the objects which the legislature had in view. -' Whereas by the custom of merchants a bill of lading being transfer- able by indorsement the property in the goods may thereby pass to the indorsee" (which I think for a long time before the 18 & 19 Vict., A.r>. 1855, was undisputed), "but nevertheless all rights in respect of the contract contained in the bill of lading continue in the original shipper or owner" (this, it is to my mind clear, refers to Thompson v, Dominy, supra), " and it is expedient that such rights should pass with the property." The mode in which the legislature carr}' out the object thus expressed in the preamble is by sect. 1 : " Every consignee of goods named in a bill of lading, and every indorsee of a bill of lading, to whom the prop- SECT. VI.] SEWELL V. BURDICK. 247 erty in the goods therein mentioned shall pass upon or by reason of such consignment or indorsement, shall have transferred to and vested in bim all rights of suit, and be subject to the same liabilities in respect of such goods as if the contract contained in the bill of lading had been made with himself." The case made on the statement of claim was that "the" propert}- had passed upon or by reason of the indorsement to the defendants. Not that they were before that a part}' to the contract in the bill of lad- ing, but that by virtue of the Act 18 & 19 Vict, when the property passed they became subject to the same liabilities as if the contract con- tained in the bill of lading had been made with themselves. It is not disputed that the delivery of the bill of lading to the defend- ants with the indorsement of the consignee on it in blank was ah in- dorsement, nor that whatever interest then passed to them still remained in them. What was in issue was whether upon or by reason of that indorsement "the" propertj- passed. The first and most important question to be decided in this case is, what is the true construction of 18 & 19 Vict. c. 111? Does "the property " in the goods there mean any legal property in the goods : so as to be satisfied by proof that a legal property passed accompanied b}- a right of possession so as to entitle the transferee to maintain trover, though it was intended by the parties, and was as between them, to be by way of security only, the transferor retaining a right of redemption either by way of a common law retention of the general property, though the pledgee had a right to the possession and a property as pledgee, a right exceeding a lien : or the whole property at law having passed by way of mortgage the transferor retaining an equity of re- demption, which in 1855 was an equitable right, enforceable only in a Court of Equity? I think that all the judges below were of opinion that if the right reserved was the general right to the property at law, what was trans- ferred being only a pledge (conveying, no doubt, a right of property and an immediate right to the possession, so that the transferee would be entitled to bring an action at law against any one who wrongfully inter- fered with his right), though "a" property, and "a" property against the indorser, passed " upon and b}- reason of the indorsement," yet the property did not pass. And I agree with them. I do not at all proceed on the ground that this being an indorsement in blank followed by a delivery of the bill of lading so indorsed, had any different effect from what would have been the effect if it had been an indorsement to the appellants by name. The case of The Freedom, Law Rep. 3 P. C. 594, was cited, and I think there are expressions used in the judgment delivered in that case by Sir Joseph Napier which indicate that the Judicial Committee were not of that opinion. It is said (page 599), "The plaintiffs were con- signees for sale ; but as part of the transaction a bill of exchange was drawn by the consignors for nearly the full value of the goods, the bills 248 SEWELL V. BUllDICK. [CIIAP. II. of Ituliiig were indorsed by them and forwarded to the plaintiffs, by whom tiic draft of the consignors was accepted and paid in due course." If that was the transaction (and whether it was so or not, the Judicial Committee proceeded on the assumption that such was the transaction), the plaintiffs in The Freedom were in exactly the position of Church, in the case of Newsom v. Thornton, 6 East, 17, the case to which I shall have to refer afterwards. Church had the bill of lading indorsed to him as a factor, or consignee for sale, and had therefore a right to hold the goods as against the indorser as a security for all his advances, and he had authority at common law to sell the goods, and before the arrival of the ship to transfer the bill of lading in furtherance of a sale, but he had no authority to pledge either the goods or the bill of lading. It is true that by the Factors' Acts the plaintiffs in The Freedom would have had a power, which Church had not, to pledge tlie bill of lading, but as the}' did not exercise that power it could make no difference. The judgment then proceeds : " The legal title to the property in the goods specified in the bills of lading was thus transferi'ed to and vested in the plaintiffs ; the right of suing upon the contract in the bills of lad- ing was transferred to them by force of the Statute 18 & 19 Vict. c. 111." The judgment then proceeds to show, I think correctly, that the dictum of Martin, B,, reported in Fox r. Nott, 6 H. & N. 637, was not neces- sary- for the decision in Fox v. Nott, and goes on : " Their Lordships are satisfied that it was intended by this Act that the right of suing upon the contract under a bill of lading should follow the property in the goods therein specified ; that is to say, the legal title to the goods as against the indorser." It certainl}- seems to me that their Lordships thought that " the " property passed within the meaning of 18 & 19 Vict, c. Ill, if any legal right to hold as against the indorser passed. The statute which their Lordships had to construe was the 24 Vict. c. 10, s. 6, which is in these terms : " The High Couitof Admiralty shall have jurisdiction over any claim by the owner" {i. e., of the goods) " or consignee or assignee of any bill of lading of any goods carried into any port in England or Wales in any ship, for damage done to the goods or any part thereof by the negligence or misconduct of or for any breach of duty or breach of contract on the part of the owner, master, or crew of the ship, unless it is shown to the satisfaction of the court that at the time of the institution of the cause any owner or part owner of the ship is domiciled in England or Wales." It is not necessary to put a con- struction on 24 Vict. c. 10, s. 6. I think that there are very good reasons for contending that a person who has possession of an indorsed bill of lading without any right at all to liold it against the indorser, without being owner of any niterest in tlie goods, is not an " assignee " within the meaning of this enactment, and consequently that what I understand to be the actual decision of Dr. Lushington in The St. Cloud, Brow. & Lush. 4, that such a person could not sue under the Admiralty Act. may liave been riglit enough. It is not necessary to decide that. But I agree with wliat was said in SECT. VI.] SE^V£LL V. BURDICK. 249 The Nepoter, Law Rep. 2 A. & E. 376, that it is contraiy to all rules of construction to interpolate any reference to the Bill of Lading Act into the Admiralty Act. I think, therefore, that the actual point decided in The Freedom, siqwa^ might be quite right, for the plaintiff in that action had a property, and a very substantial pi'operty, in the goods, as against the indorsers, and every one else, and was in ever}- sense an assignee of the bill of lading. The opinion expressed on the construction of the 18 & 19 Vict. c. Ill, that in that Act the property meant a legal title as against the indorser, was perhaps unnecessarj^, and, I think, not sound. The words used in the statute are not such as prima facie to express such an intention. No one, in ordinary language, would say that when goods are pawned, or money is raised by mortgage on an estate, the property, either in the goods or land, passes to the pledgee or mort- gagee, and I cannot think that the object of the enactment was to enact that no security for a loan should be taken on the transfer of bills of lading unless the lender incurred all the liabilities of his borrower on the contract. That would greatl}', and I think unnecessarih', hamper the business of advancing money on such securities which the legis- lature has, by the Factors' Acts, shown it thinks ought rather to be encouraged. It is not uncommon to reduce into writing the agreement between the banker and his customers as to the terms on which the bills of lading deposited b}' them as securities are to be held. Such was the case in Glyn V. East and West Ladia Dock Company, 5 Q. B. D. 129 ; 6 Q. B. D. 475 ; 7 App. Cas. 591, as to which I shall have more to sa}' hereafter. When there is such a writing, it is, in the absence of fraud, conclusive as between the parties as to what the}' intended. And I do not in the least question that such a writing ma}- be so expressed as to show that between the parties the transfer was a mortgage, though of goods, in the manner with which every one is familiar with regard to lands. The equity of redemption in such a case was an equitable estate only, and in 1855 enforceable in equity, not at law. Where there is neither a symbolical delivery by a transfer of a bill of lading, nor an actual delivery of the goods themselves, there may be (though there seldom is) a substantial difference in the rights of the lender according as the transaction is of the one kind or the other. In Howes V. Ball, 7 B. & C. 481, Ball sold and delivered a coach to John Howes (since deceased) under an agreement in writing, in which there was this clause, "And further I, John Howes, do agree that Thomas Ball do have and hold a claim upon the coach until tlie de])t be iluly paid." John Howes died without iiaving paid tlie debt. Ball, after his death, seized the coach, for which seizure the action was brought by the executor. Had that agreement amounted to a mortgage by John Howes to Ball, I take it there could have been no doubt that the mortgagee would have had as much right against the executor of John Howes as he would have had against John Howes himself. But it 250 SEWELL V. BURDICK; [cHAP. IL was held that it did not amount to a mortgage, but onl}- to an agreement that Ball should have a right of hypothec, and, there having been no delivery by Howes to Ball, the decision was that though so long as John Howes lived and held the property' in the coach Ball might have justified the seizure, as against him, he could not justify a seizure as against the representatives. In Flory v. Denny, 7 Ex. 581, where the agreement was " as an ad- ditional securit}' for a loan to assign all the debtor's right and interest in a chattel," it was held to be a mortgage, and to operate so as to transfer the propert}', without an}- deliver}', as a bargain and sale out and out of the goods would, though an agreement to create a pledge would, according to Howes v. Ball, supra, have conveyed no property of any kind in the goods without a delivery. But where the goods are at sea, and there is a transfer of the bill of lading, there is a delivery of possession, symbolical, it is true, but all that can be given. The question whether there was a mortgage or only a common law pledge, or hypothec, it being accompanied by delivery, might affect the question what was the court in which those rights were to be enforced, but does not affect the substance of the rights. The borrower, if ready and willing to pay the money, might in the one case be able to bring an action at law against the lender who refused to allow him to redeem, and in the other have to sue in equity, but as it would equally be a pledge his rights would be the same in substance. I am therefore strongly inclined to hold that even if this was a mortgage there would not have been a transfer of "the" property within the meaning of 18 & 19 Vict. c. 111. This is contrary to the opinions not only of Brett, M. R., and Baggallay, L. J., but of Field, J., also. Bowen, L. J., who agreed with Field, J., in thinking that this was not a mortgage but only a pledge, did not express any opinion as to what would have been the law if it had been a mortgage. I believe all the noble and learned lords who heard the argument are agreed with him in thinking that in this case it was only a pledge. I do not therefore intend to express a final decision that an assignee of a bill of lading by way of mortgage is not as such liable to be sued under 18 & 19 Vict. c. Ill ; but only to guard against its being supposed that even if Brett, M. R., and Baggallay, L. J., were right in holding this a mortgage, I, as at present advised, should agree in their conclusion that the defend- ants could be sued. I now proceed to consider the question on which the Court of Appeal were divided in opinion, but the majority made the order now appealed against. The question is stated by Brett, M. R., to be, " Does the in- dorsement of a bill of lading as a security for an advance, by a neces- sary implication which cannot be disproved, pass the legal property in the goods named in the bill of lading to the indorsee with an equity in the indorser, the borrower, to redeem the bill of lading by payment, or to receive the balance, if any, on a sale?" 13 Q. B. D. 161. Field, J., had held, and Bowen, L. J., agreed with him, that it might SECT. VI.] SEWELL V. BUKDICK. 251 SO operate, if so intended bj' the parties at the time, but did not so operate if it was intended to be no more than a pledge as distinguished from a mortgage. I do not understand that any one of the judges below disputed that if it was a question of intention depending on the evidence, the finding of Field, J., was right ; but the majority- in the Court of Appeal proceeded on the principles laid down by Brett, L. J., in Glyn v. East and West India Dock Compan\', siq^ra. In that case the terms on which the bill of lading was delivered to Glyn &, Co. were reduced to writing, and the question, therefore, whether it was intended to deliver it b}' way of pledge only, or by way of a mortgage, depended on the construction of that writing. Whether Brett, L. J., thought that on the construction of the written instrument it was intended to be a mortgage I do not know ; I do not think he proceeded on that ground. He said it was a mortgage, and that the effect of the statute 18 & 19 Vict. c. Ill, was to transfer the right to sue and the liability to be sued to Glyn & Co. Lord Bramwell, then Bramwell, L. J., was of an opposite opinion on both points. He thought that Glyn & Co. had a special property and a right of possession, and no more. In the House of Lords I said, ^ I do not think it necessary to express any opinion on a question much discussed by Brett, L. J., — I mean whether the property- which the bankers were to have was the whole legal property in the goods, Cottam & Co.'s interest being equitable only, or whether the bankers were only to have a special property as pawnees, Cottam &, Co. having the legal general property. Either way the bankers had a legal property, and at law the riglit to the possession, subject to the shipowner's lien, and were entitled to maintain an action against any one who, without justification or legal excuse, deprived tliem of that right." 7 App. Cas. 591, 606. All the noble and learned lords agreed in this. I think, therefore, tlie decision of this House is a strong authority in support of the position which I have before advanced, that the rights of a mortgagee having taken a bill of lading, and the rights of a pawnee having taken a bill of lading, are in substance the same. I did not think it necessary to point out that the question which the House in Glyn v. East and West India Dock Company, supra, had to decide, and did decide, would have been just the same if 18 «fe 19 Vict. ank bought a draft of the Lacey Grain Company, receiving the bill of lading as security. The bank filed an intervening petition, claiming the wheat, and the trial court directed a verdict finding the petitioner entitled to the possession of the property, and judgment was rendered on this verdict. The plain- tiff appealed. Both rock t& Grimm, for appellant. J. C. Leonard and S. K. Tracy, for appellee railroad company. Preston, Wheeler & Moffitt, for appellee intervener. Ladd, J.^ It is insisted by appellee that the wheat could only 1 A portion of the opinion in which it was held that the wheat hart been rtelivered to the plaintiff is omitted. The statement of facts also is somewhat abbreviated. 286 ANCHOR MILL CO. V. BURLINGTON, ETC. RY. CO., ETC. [CHAP. IL be delivered by transfer of the bill of lading. Garden Grove Bank V. Humeston & S. Kailway Co., 67 Iowa, 533 (25 N. W. Rep. 761), is relied on. That the bill of lading represents the property while being transported, and its assignment operates as a symbolical deliv- ery thereof, cannot be doubted. Weyand v. Railway Co., 75 Iowa, 579 (39 N. W. Rep. 899) ; Ayres Weatherwax & Reed Co. v. Dorsey Produce Co., 101 Iowa, 141 (70 K W. Rep. 111). The bill of lading, however, is not a negotiable instrument, and its transfer carries with it only such interest in the property as the assignor might transfer by actual delivery. Certainly, the assignment of the bill of lading is not more effective in transferring title than manual change of pos- session. The intervener obtained no better title to the wheat than the Lacey Grain Company had when it parted with the bill of lading. Haas V. Railroad Co., 81 Ga. 792 (7 S. E. Rep. 629) ; Tison v. Howard, 57 Ga. 410 ; Shaw v. Railroad Co., 101 U. S. 557. Prior to that time the railroad company had fully performed its duties as common car- rier by delivering the wheat to the plaintiff in pursuance of the order of the consignee and the indorsement on the back of such bill. The title to the wheat had passed to the plaintiff, who had already paid for it. The bill of lading had served the purposes of its existence, and was no longer a thing of value. Such a rule only requires that the purchaser of a bill of lading know the title to the property of the person from whom he buys. This is the general rule, and we know of no reason for making an exception in favor of one claiming posses-' sion by constructive instead of actual delivery of property. It follows that the district court erred in directing a verdict in favor of the inter- vener, and its judgment must be Reversed} 1 See also National Commercial Bank v. Lackawanna Transportation Co., 59 N. Y. App. Div. 270; 172 N. Y. 596; Mairs v. Baltimore & Ohio R. Co., 73 N. Y. App. Div. 265. SECT. VI.] MOORS V. WYMAN. 287 JOSEPH B. MOORS v. FERDINAND A. WYMAN. Supreme Judicial Court of Massachusetts, November 16, 17, 1887 — January 9, 1888. [Reported in 146 Mussachuselts, 60.] Holmes, J. This is a bill in equity brought by a creditor of the Boston firm of F. Shaw & Brothers, consisting of Fayette Shaw and Brackley Shaw, against that firm ; against another firm in Vanceboro, Maine, of the same name, consisting of the above-named Shaws and Thaxter Shaw ; and against Ferdinand A. Wyman, to whom both firms have made voluntary assignments for the benefit of creditors. As the objections to the jurisdiction are now waived, and as the assets in con- troversy have been converted into money, and a large part of the plain- tiflTs claim has been paid since the filing of the bill, leaving only certain items of the account in dispute, such only of the facts need be stated as are necessary in order to settle these disputed items. The plaintiff, Moors, made advances to the Boston firm in several ways. 1st. Under what is called the loan account agreement, by indorsing their notes, &c., in Boston, taking as security bills of par- cels of specified hides, which the Vanceboro firm were tanning for the Boston firm, and which were delivered by the Boston firm to and held by Thaxter Shaw as agent for the plaintiff with the consent of the Vanceboro firm. The Vanceboro firm agreed that the cost to Moors for tanning should not exceed four cents per pound, and in fact all charges for tanning were paid by the Boston firm to the Vanceboro firm. B}' the Boston firm's agreement, Moors had power in case of default, or if in his opinion the collateral did not afTord a margin of twenty-five per cent above the amount unpaid, to sell at public or private sale without notice ; and it was further agreed that all collateral security held by Moors for the Boston firm's account, whether under that contract or otherwise, might be taken and applied as general security for all existing or subsequent indebtedness. This account has been paid off in groat i)art, since the filing of the bill. 2d. The plaintiff issued to the Boston firm letters of credit on Mor- ton, Rose, & Co., of London, under which the firm bought hides, taking bills of lading to the plaintiffs order b}' agreement, the plaintiff having a lien on tlie goods, bills of lading, and policies of insurance, with authority' to take possession and dis|)ose of them at his discretion for his security or reimbursement. Before the defendant's failure the prac- tice was for the plaintiff to indorse the bill of lading to the Boston firm, thev signing a contract by which the}' received the hides as his agents, and agreed as such agents to send the hides to specified tan- neries of theirs in Maine or New Yoik, and to deliver to tiie plaintiff upon demand the identical leather into which the hides should be manu- 288 MOORS V. WYMAN. [CHAP. IL factuved, the plaintiff not to be chargeable with any expense thereon. The intention of tlie agreement was stated to be to protect and preserve unimpaired the plaintiffs lien. After the failure the plaintiff took pos- session of the hides as they arrived, and sold them through reputable brokers for fair prices. The plaintiff has paid Morton, Rose, & Co. the v^hole amount due them. od. The plaintiff obtained letters of credit for the Boston firm drawn upon the Bank of Montreal by the agents of the bank, the Boston firm giving the bank an agreement similar to that with Moors, last men- tioned, with authority to the agents to take possession of the goods and dispose of the same at discretion, and to charge all expenses, in- cluding commissions, for sale and guaranty. Upon the arrival of the hides the agents of the bank indorsed the bills of lading to Moors, who before the failure indorsed them to the Boston firm under the same form of agreement as stated with regard to bills of lading under the Morton, Rose, & Co. credit. The hides arriving after the failure were sold by him in like manner as before stated. The plaintiff has paid the bank the whole amount due to it. It is argued for the Shaws that Moors received the indorsed bills of lading as agent of the Bank of Montreal, and that, however this ma}' be, he has lost his rights in all hides received by him under an}' bills of lading before the failure, and turned over to the Boston firm as Moors's agents. But upon the record before us we must take it that Moors received the hides, as the master's report implies that he did, on his own behalf. The agents of the bank looked to him for payment, and they have been paid. The bank had a title, whether absolute or qualified does not matter. See De Wolf v. Gardner, 12 Cush. 19; Forbes v. Boston & Lowell Railroad, 133 Mass. 154, 156 ; Moors v. Kidder, 106 N. Y. 32. INIoors got this title by indorsement, and had a similar title originally under the Morton, Rose, & Co. bills of lading. His indorsements of the bills of lading to the Boston firm as his agents did not release this title. It was not a conveyance in form, and being made only for the purpose of enabling him to get the goods from the carriers, it was not a convej'ance in substance or effect. See Moors v. Kidder, sitpra; Pratt v. Parkman, 24 Pick. 42, 47 ; Low v. De Wolf, 8 Pick. 101. 107. Neither did Moors lose his rights by giving the custody of the hides to the Shaws. They expressly agreed to hold as Moors's agents, and the general rule is perfectly well settled that the custody of a servant or of a mere agent to hold is the possession of the master or principal. The only difficulties that have arisen have been due to the failure to distinguish accurately between such servants or agents and bailees who hold in their own name ; Hallgarten v. Oldham, 135 Mass. 1,9; or, in the case of pledges, between a delivery to the pledgor for his own pur- poses and intrusting him with the custod}' on behalf of the pledgee. Kellogg V. Tompson, 142 Mass. 76, 79. It might be argued that policy requires an exception to be made in favor of a ho7ia fide pur- SECT. VI.] FAEMEES', ETC. BANK V. LOGAN. 289 chaser for value from the general owner having the seeming possession of the goods, as against a person whose security depended upon pos- session, and who had made the owner his custodian. But the Mas- sachusetts cases tend to show that there is no such exception in the absence of fraud. Kellogg v. Tompson, and Moors v. Kidder, supra ; Thacher V, Moors, 134 Mass. 156, 165. At all events, there is noth- ing in this case to warrant our making one, even assuming that all parties before us are not concluded by the express agreement of the IShaws that the plaintiff's rights should remain. There is nothing in Wyman's position, as to proceeds in his hands, to diminish the rights ■which Moors had as against the Shaws, nor do his counsel argue that there is, so far as the question of possession is concerned. Decree accordingly.^ FARMERS', ETC. BANK v. LOGAN. New York Court of Appeals, May Term, 1878. [Reported in 74 New York, 568.] FoLGER. J. This is an action brought by the plaintiff" to recover of the defendants the value of a canal-boat load of wheat, alleged to be the property of the plaintiff and to have been taken by the defendants and converted to their own use. The plaintiff recovered judgment against all of the defendants. The defendants, Logan and Preston, have appealed, and they contest the recovery. The}' did, in fact, take the wheat and ship it abroad for their own purposes and benefit. They bought it from the defendant, Brown, at the produce exchange in New York City, and paid for it, all in the usual course of business of that mart. The}- did not see, nor seek for, any evidence of the title of Brown, or of his right to sell ; nor was there any, save that the wheat was in his actual custody, by virtue of a special deposit of it with him in trust, and that he had, and exhibited, samples of it on change. The wheat was first owned by one Perot, at Buffalo, N. Y. It was in an elevator there. Sears and Daw were commission merchants at that place. They acted, in the i)urchase of wheat for him, as correspondents and agents there of the defendant Brown, who resided and did business in New York City. At this time they had an order from him to buy two boat-loads of wheat. To fill that order, they negotiated with Perot for the wheat in the elevator, and bought it for Brown. But they bought of Perot on their own credit, and the}- paid him for it with money obtained by them, as will appear further on. They took a bill of sale from Perot, which ran in their own name, to themselves. Perot knew not Brown in the transaction. The money, with which the wheat was ^ A portiou of the opiuiou is omitted. 290 farmers', etc. bank v. log an. [chap, il paid for to Perot, was got by them in this way. After the wheat was spouted from the elevator into a canal-boat, owned and navigated by persons not connected with the defendant Brown, the master of it made a bill of lading, stating the shipment of the wheat to be by them, as agents and forwarders, to New York, on acconnt and order of the plain- tiff, with a direction appended to notify Brown at that place. The}' then drew their own draft on Brown, to the official order of the plaintiff's cashier. That draft and the bill of lading, with a certificate of insurance of the wheat, were given to the plaintiff, which, with notice of all the facts at that time existing, on the strength and securit}' of those papers discounted the draft for Sears & Daw, and gave the avails thereof to them. They deposited the mone}- thus obtained, to their own credit, in Tlie White's Bank, and paid Perot for the wheat bj' their own check to him thereon. The bill of lading and other papers were retained by the plaintiff. The draft was indorsed b}' it to its correspondent bank in New York City. The bill of lading and certificate of insurance were pinned to the draft. There was stamped upon the draft a direction to the correspondent bank to deliver the bill of lading and certificate to Brown, on his acceptance of the draft. There was stamped on the bill of lading a statement addressed to Brown, in purport that the wheat and the insurance of it were pledged to the plaintiff, as securit}' for the payment of the draft ; and that tlie wheat was put into his custody, in trust, for that purpose, not to be diverted to an}' other use, until the draft was paid ; and that upon his accepting and paying the draft, the claim of the plaintiff would cease. The papers were sent to the corre- spondent bank, in New York City, with instructions in conformity with the matter stamped upon the papers. The draft was presented to Brown, and was accepted by him. The bill of lading was delivered to and kept by him. After that, the wheat reached New York City ; but before the maturity of the draft, Brown procured samples of it, made the sale of it, and with money got from Logan & Preston by an advance on the price, paid the freight and other charges of the carrier. Logan & Preston received the wheat from the carrier, and sent it abroad. These facts are sufficient to make application of what we conceive to be the law controlling the case. There lies at the base of the matter an elementary principle of the common law well known and often stated, but which maj- be profitabl}' repeated here, from a high source, as the foundation of our discussion. A purchaser of chattels takes them, as a general rule, subject to what- ever may turn out to be infirmities in the title. A purchaser in market overt is an exception. But if not bought there, though the purchase be bona fide, the title got ma}' not prevail against the owner. Again : where the owner has parted with the chattel to another, on a de facto contract, a purchaser from that other bona fide will obtain an indefea- sible title. By a de facto contract is meant one which has purported to pass the property from the owner to another. See Cundy v. Lindsay, L. R. 3 Appeal Cases, 459. SECT. VI.] FAE:\ILR3', etc. bank v. LOGAN. 291 In the case in hand, there was not a purchase b}' the appellants in market overt, for such place and effect of sale is not recognized in this State. Wheelwright v. Depeyster, 1 J. R. 471-480; Mowrey v. Walsh, 8 Cow. 238. The title set up by the appellants cannot prevail then, unless they purchased in good faith from the real owner, or from one to whom the real owner had parted with the goods on a de facto contract. The difference between the parties arises, when the question is put, to whom did Perot, the acknowledged real owner at first, part with it thereby — to Brown, or to Sears & Daw? The appellants claim that the contract of sale from Perot was to Brown ; that he became the owner, that the wheat was indeed pledged to the plaintiff, but that Brown was the general owner and the pledgor ; that when the plaintiff, being but a pledgee, put the possession of it in Brown, it lost its lien, as against a bona fide purchaser from him. So that the important inquiry is, who did, upon all the facts of the case, become the owner of the wheat, by the transaction with Perot? It is conceded to be the vital point in the case of the appellants, that Brown, from whom they purchased, had a title of his own in the goods, which, subject to the lien of the plaintiff, he could transfer, and that the voluntary surrender of the possession to him by the plaintiff enabled him to make an effectual transfer of it, free from tliat lien. It will not have escaped an observation of our recital of facts, that Brown furnished no money nor any credit for the purchase from Perot. It was bought by Sears «& Daw of him, on their credit, on his trust in them that they would pay for it. Nor was the draft discounted by the plaintiff on the credit of Brown. The bill of lading and the insurance upon the wheat were the security upon which the plaintiff rested. Sears & Daw remained liable until the draft was paid or they were discharged by some act of the plaintiff. Nor did Brown, when he ordered the pur- chase of the wheat, expect to furnish the money to pay the seller of it. He expected, and Sears »& Daw expected, that the money would be got in the way in which it was got. Nor was there any act of Perot, or of Sears & Daw, in dealing with the wheat, which, of itself, passed the title to it to Brown. The Mechanics' and Traders' Bank of Buffalo v. The Farmers' and Mechanics' National Bank of Buffalo, 60 N. Y. 40. The bill of the sale from Perot was to Sears & Daw. The bill of lading from the carrier was not to Brown, it was to Sears & Daw, to tlie account and order of the plaintiff. The shipment is stated, indeed, to be by them as agents and forwarders. That phrase does not, of itself, point to Brown as the principal or consignee ; and when understood, in knowledge of all the facts, does not declare or suggest iiis ownershio of the wheat. In sooth, all the paper evidence, up to the time tha. the bill of lading went into the keeping of the plaintiff, gives no sign of ownership in Brown ; but, on the contrary, does show ownership in Sears & Daw transferred to no one, save it be the plaintiff. And the facts given by the oral testimony show the purpose to bar Biown from the light to control or dispose of the wheat, until he paid the draft. 292 farmers', etc. bank v. logan. [chap, ii. The case of Turner v. The Trustees of the Liverpool Docks, 6 Exch. [Welsh}', Hurl. & Gordon], 543, is pertinent. Merchants in Liverpool sent orders to uierchunts in Charleston, to sliip cotton on account of the former, in their vessel, for her voyage to Liverpool. They in Charleston bought cotton, and sliipped it in that vessel. The}" took a bill of lading " to order or to our assigns," and indorsed it "deliver the within to The Bank of Liverpool or order." They drew drafts on the merchants in Liverpool, and delivered the bill of lading to a bank in Charleston, and, on security of it, sold the drafts to the bank, and used the avails to pay for the cotton, or to reimburse themselves for advances therefor. They in Liverpool did not pa}- the bills. When the cotton reached that port, the question arose, to whom did the cotton belong ? It was held that the property in it did not vest absolutely in them in Liverpool, not- withstanding the delivery of it on board their ship to their servant, the master ; but that they in Charleston, by the terms of the bill of lading, had reserved to tliemselves tijus disponendi of tlie cotton, and that tliey had not divested themselves of their property in or possession of the goods ; and that having bought the cotton with their own funds on their own credit, they retained their property in it until payment was made for it by the men in Liverpool. See in ace. The Frances, 9 Cranch, 183. Tliere are facts in the case cited (6 P^xch. svi^ra) not stated by us which make it a stronger case for the principals in Liverpool than the one in hand is for Brown. It was decided in the Exchequer Cham- ber, after elaborate argument and full consideration. It has been since recognized and approved as sound and authoritative. See Mirabita v. Imp. Ottoman Bank, L. R. 3 P2xch. Div. 164. The conclusion reached in it satisfies our judgment ; the principle declared in it is sound, and applicable to and decisive of the point we are now considering. "When commercial correspondents, on the order of a principal, make a purchase of property ultimately for him, but on their own credit, or with funds furnished or raised by them, and such course is contemplated when the order is given, they may retain the title in themselves, until they are reimbursed. One of the means by which this may be done, is by taking the bill of sale in their own names, and when the property is shipped, by taking from the carrier a bill of lading in such terms as to show that they retain the power of control and disposition of it. This results necessarily from the nature of the transaction. It is not, at once, an irrevocable appropriation of the property to the principal. It rests, for all of its efficiency and prospect of performance, upon the intention to withhold and the withholding the right to the property, so that that right may be used to procure the money with which to pay. It contem- plates no title in the principal, until he has reimbursed to his corre- spondents the price paid by them, or to the person with whom they have dealt, the money obtained from him, with which to pay that price. From the start, the idea formed and nursed is, that the propert}- shall be tlie means of getting the money with which to pay for it, and that the title shall not pass to him who is to be the ultimate owner, until he has repaid the money thus got. SECT. VI.] farmers', ETC. BANK V. LOGAN. 293 Although such correspondents act as agents, and are set in motion by the principal who orders the purchase, yet their rights as against him, in the propert}', are more like those of a vendor against a vendee, in a sale not wholl}' performed, where delivery and payment have not been made, and where deliver}' is dependent upon payment. And so in the case cited from 6 Exch., supra, such cases of vendor and vendee are looked to as authority, and e converso, that case is relied upon in Law Rep. 3 Ex. D., sujyra, which was such a case of vendor and vendee. The rule laid down is, that the property remains in the shipper ; or that lie has ajiis dispone?idi, a property or power which enables him to con- fer a title on a pledgee or vendee, though in breach of his contract with his first vendee ; and that, whichever it is, the result must be the same. Id. If the vendor, when shipping the articles which he intends to deliver under the contract, takes the bill of lading to his own order, and does so not as agent or on behalf of the purchaser, but on his own behalf, he thereby reserves to himself a power of disposing of the prop- erty-, and consequently there is no final appropriation, and the property- does not, on shipment, pass to the purchaser. Id. So, if the vendor deals with or claims to retain the bill of lading in order to secure the contract price, as when he sends it forward with a draft attached, and with directions that it is not to be delivered to the purchaser until pay- ment of the draft, the appropriation is not absolute, and until payment or tender of the price, is conditional only, and until then the property of tlie goods does not pass to the purchaser. Id. ; and to this Turner V. Trustees, supra, is cited. We see no principle which distinguishes the case of a vendor and vendee, in this respect, from that of a corre- si)ondent or agent, buying for another, yet paying the price from his own means, or from moneys by agreement raised upon the property, or upon his own credit, and holding the property as security, until the principal has made reimbursement. Such is the purpose of the parties. There is no intent that the property shall be appropriated until payment is made. And unless third parties are unavoidably misled to their harm, the}' liave no cause to complain of a purpose so reasonable and • productive of so good results. We tliink that the adjudications, on this side of the water, are to the same end. There have been repeated adjudications in this court, whereliy the legal effect of a bill of lading has been determined, when it contained some special clause or notation, or had upon it an indorsement which pointed out a particular person, as the one on whose account the property- named in it was to be carried and delivered. Bank of Roches- ter v. Jones, 4 N. Y. 497 ; Dows v. Perrin, 16 id. 3-25 ; Mechanics' and Traders' Bank v. Farmers' and Mechanics' Bank, GO id. 40 ; First Kational Bank of Toledo v. Shaw, 61 id. 283 ; s. c. on second appeal, 6!) id. 624 ; Marine Bank of Buffalo v. Fiske, 71 id. 353 ; Bank of Commerce v. Bissell, 72 id. 615. The bill of lading of goods, thus affected, prima facie confers upon the person in whose favor it is issued, or to whom it is transferred, the legal title to thorn. 4 X. Y., snpra. 294 farmers', etc. bank v. logan. [chaf. il That result is, though the transaction is not intended to give the per- manent ownership, but to furnish a security for advances of mone}- or discount of commercial paper, made upon the faith of it. Third persons, dealing with property thus shipped, though acting in good faith, in the regular course of business, and paying value, are affected by the terms of the bill of lading, are bound to look into it, and are chargeable with a constructive notice of the contents of it. In the case in hand, had the appellants asked for the bill of lading, and looked into it, they would have seen that the propert}' described in it was in the possession of Brown, Avith a special and restricted right over it, and that the}' could not deal with it safely, until there had been a coraphance with the con- dition attached to that possession. City Bank v. R. W. and O. R. R. Co., 44 N. Y. 136. And as the}' were chargeable with a constructive notice of the contents of it, there is the same legal result as if the}' bad looked into it. Id. "We do not understand that the learned counsel for the appellants takes a position which he will admit is hostile to these adjudications. He seeks to distinguish the case at bar from those cited. He admits, as we understand him, that had this case stood alone upon the bill of lading, the defendants would have been properly cast in judgment. But he insists that Brown was the general owner of the wheat; that the plaintiff voluntarily put it into his possession ; that being in his posses- sion with its consent, he being general owner of it, the appellants were no longer bound to look into the bill of lading, and had not constructive notice of its contents. There is a subsidiary position, that the plaintiff, having onh' a special property in the wheat, as a pledgee, could not commit it to the possession of Brown, as he was the general owner and pledgor of it, without losing that special property to a bona fide purchaser from him. It is seen, at once, that the important thing, in this contention, is that Brown was the general owner of the wheat ; for on the existence of that depend both the propositions put forth. We think that we have shown that the idea of a general ownership in him is not consistent with the facts of this case, nor with the rules of law declared in like or analogous cases. To be sure, by his order to Sears & Daw to purchase the wheat for him, he set on foot a course of action, which, if carried out to the end, in the manner proposed and intended b}' all the parties to it, would have vested in him the general and unqualified ownership. But he never had the power over the wheat of a general owner. There was never a time that he had such dominion of it, as that he had the right to enjoy or do with it as he pleased, even to spoiling or destroying it ; or that he had that right in it, b}* which it belonged to him in particular, to the exclu- sion of all others. To constitute ownership, in the sense of that phrase as here used, there must be, at some time, a right as ample and unre- stricted as that. When that right once exists, he who has it is a general owner. He may then burthen or limit that right, or subject it to rights created by him in others, and cense not to be the general owner. But SECT. VI.] farmers', etc. BANK V. LOGAX. 295 he has not become the general owner, though he ma}' have an interest in the property, until he has a riglit as great as that stated above. We are asked, would not the profit have been Brown's, had the. wheat advanced in value, and the loss his, had it declined, or if it had been destroyed b}- fire? To which the read}' answer is, whatever had chanced to it, it would not have been his, as between him and Sears & Daw and the plaintiff, until he complied with the conditions on which it was bought for him, that is to say, had accepted and paid the draft. As soon as he paid the draft, it would have been his, with whatever enhance- ment of value. Had it lessened in value, or been burned up, he would still have been liable to Sears & Daw, for the price of their services and for their expenses, and to the plaintitf, first, on his promise to accept the draft, and after acceptance, on that obligation to pay it. This posi- tion is noticed in Mirabita v. Imp. Ottoman Bank, supra; and while holding that the shipper may retain a power over the goods, it is declared that the vendee has an interest in them, that they are at his risk, and that the loss or benefit to them is his. This particular matter is treated of in Haille v. Smith, 1 Bos. & Puller, 563. There, property was shipped b\' the owners of it, and the bill of lading indorsed in blank, and the invoice were sent to a mercantile house, under a previous agree- ment that it should receive and hold and sell the property, and api)!}- the avails for the benefit of a banking-house, to which the owners and consignors of the property were or were likel}' to be indebted. The point was there made that the risk was upon the consignors, up to the time of a sale, and that they had an insurable interest, and that the}' had a right to detain. The court held, that the bill of lading operated as a change of the property ; that by reason of the agreement, from the moment that the goods were set apart for the particular purpose of securing the banking-house, there w'as a change of property ; but as it was a change of property for the purpose only of applying the proceeds by way of indemnity, the circumstances of the risk, and of the profit and loss, referred to the trust with wliich the property was charged, and wore accounted for thereby ; and that that trust being that the pro- ceeds should l)e applicable to the debt of the banking-house, the risk must remain with the consignors, notwithstanding the change of property, and the consignors must suffer or be benefited by the loss or profit upon the sale. It would seem that the principle thus announced is equally applicable to the facts in the case in hand, though they differ in some particulars. Here, the wheat is bought by Sears & Dayjr for Brown, but, on the instant, the property in it is, by the bill of lading, vested in the plaintiflT, but as an indemnity, and cliarged with a trust tliat it be sold, if not paid for by Brown, and the avails applied to repay the advance made upon it. In analogy witli the decision in the case cited, why is not the risk upon Brown, and the profit or the loss his, though he have not the property in the wheat ? It cannot be successfully contended that, until Brown paid the draft, he could have maintained an action fof the deliverv of the wheat, had the plaintiff retained it. He could 296 FARMERS', ETC. BANK V. LOGAN. [CIIAF. 11. not have shown that he ever had right to possession, or right to the dominion over it, to the exclusion of all others. " So long as the advances were not paid, there was no theory whereby" Brown "could claim title. It had never been in" him. "At the moment his interest, whatever it was, accrued, it came burdened with the formal ownership of the plaintiff." Bank of Toledo v. Shaw, GIN. Y., suj^ra. Had Sears & Daw advanced the money as factors, in compliance with the order of their principal and giving him credit, the purciiase would have been for him at once, and he would, at the instant, have become the owner of the thing bought. But the facts are far otherwise, and must not be lost sight of. At the outset, as one of the first steps in the process, the legal title was lodged in the plaintift", not to leave it until the payment by Brown of the draft. Thus the case is kept out of the law governing the relations of pledgor and pledgee. The plaintiff was not a }jledgee of the property of Brown. It had a right to it, not the qualified and special property of one holdings as a securit}', a chattel belonging to another. It had the legal title, under an agreement to transfer it on payment being made; it "held the title in trust for" Brown, " after its own claim was satisfied," 61 Is'. Y., supra. Nor does this conflict with Williams v. Littlefield, 12 Wend. 362. There the factor or agent bought on terms more favor- able than he exacted of the principals ; the variation he made was a departure from instructions and from the course of former dealing. Here, all that was done was in accord with previous understanding. Such, it seems to us, is the result of the adjudications in this country. The basis of the opinion in 61 N. Y., supra, is that the legal title to the property was in the bank, as assignee of the bill of lading. It is well to notice here a distinction, that is attempted to be made, between the case just cited and the one in hand. It is said that there, there was an express agreement that the purchasing agent, or the discounting bank, should hold the property until the draft was paid. Such agreement was but putting into terms the legal effect of the transaction in the case before us. For we have shown, by authority, that the taking of the bill of lading in the name of the plaintiff, for its account, and the discount of the draft by it on the strengtli thereof, did transfer to it the title to the wlieat. And in 61 N. Y., supra, the agreement between the agents and the bank was like that here, that the draft should be drawn on the principal, and that the bill of lading be taken in the name of the bank as security for the payment. Dows v. National P^xchange Bank, 91 U. S. Rep. [1 Otto], 618, stands upon the same footing. The outset of the opuiion, in that case, states the only question to be, whether the ownership of the property had Deen divested before the conversion ; and that the court has only to inquire to whom the wheat belonged when it came to the hands of Dows & Co. The opinion declares that the agents at Milwaukee, having purchased and paid for it with their own money, became tlie owners of it. This is placed upon the fact, that not being furnished with funds by their principals, they raised SECT. VI.] farmers', ETC. BANK V. LOGAN. 297 them in the way used by Sears & Daw. It is said, in argument before us, that the position just stated was conceded by the counsel in that case, and the inference is then made here, that it was assumed by that court as the law of that case, without consideration or deliberate judg- ment, or as necessarily applicable to every case of like facts. We think that the position is stated by the court as the law of that case and of every case showing the same facts, in that respect; though, as the proposition was not controverted by counsel, a bare statement was thought to be enough without discussion or elaboration. Nor is there meant by the term ''ownership" only a special property, like that of a lienor or pledgee ; it is put as "the absolute ownership," ''the complete power of disposition." In this view, those cases are not applicable here which hold that a delivery to a vendee, even upon condition expressed at the time, will maintain a right in a bona fide purchaser from the ven- dee. Smith V. Lynes, 5 N. Y. 41, is an example of such cases. Ballard y. Burgett"^, 40 id. 314, and Austin v. Dye, 46 id. 500, show the distinction which exists ; and the same appears in considering Rawls V. Deshler, 3 Keyes, 572 ; and M. and Traders' Bank v. F. and Mechanics' Bank, 60 N. Y. 40. Hence there was no relation between the plaintiff and Brown of pledgee and pledgor ; and hence no giving up by it, as pledgee, of tlie possession of property, held by it in pledge, to him while the general owner of it. It is not, therefore, needed that we consider whether, if such were the case, the special property or lien in it of the plaintiff was lost thereby. Much stress is put upon the assumed fact that the right of the plain- tiff in the wheat was a secret lien, and no more. Whether a lien merely, or an ownership, the declaration of the bill of lading, even with the modification thereof, made by the matter stamped upon it by the plain- tiff, evinced to any one looking at it, that Brown had no right or authority to dispose of the wheat, until he had paid the draft. As it is conceded that possession merely, without title, in one assuming to sell, does not give title to his vendee, what is required of the vendee in such case, if it be not to examine the bill of lading or other evidence of title? And here an examination would have shown that Brown could not give good title. It is said that, as the carrier could properly make delivery to Brown, the entire functions of the bill of lading were exhausted when the wheat was transferred from out the canal-boat into the sea-going steamer. But that is not so, for by that transfer there was but a change of possession, and if possession merely did not give title, there was still something further to be looked for and required, and the terms of the bill of lading, even as modified, still stood in the way of a transfer of the absolute ownership of the wheat by Brown. And we now come back to the elementary rule with which we started. It appears that there were infirmities in the title which the appellants got from Brown, or rather they got no title from him ; for there had never been a contract de fndo which purported to pass the property from the owner to him. All that the appellants had, upon which they 1^98 MOORS V. KIDDER ET AL. [ciIAP. II. Lad a right to rely, was the fact of possession of the wheat by Brown, and the purchase of it by them, in accordance with the usual course of business op the produce exchange. We doubt not that the latter makes ver}' easy and rapid the transaction of an immense trade in the agricul- tural products of the country ; and that it would tend much to the security and confidence with which it could be done, if the law of market ocert could be applied to it. But such is not the rule of this State, in the sale of chattel property, and we may not declare it so to be. The pur- chaser buys at his risk of the title, and if he would be safe, must make inquir}-. He may not, with certainty, stop at the fact of possession, but must learn how the possession has been acquired. In ever}- such ease as this, the muniments of a real title are easy to be produced. When the property is, in fact, in the carrier's hands, the bill of lading will show to whom alone he has tlie right to deliver it. And if the directions of that document are relied upon, there cannot be much risk. A reliance upon it, and a prior inspection of it, ma}' delay transactions, but they will protect all innocent and well-meaning parties, and thwart seriously only those who mean to do wrong or are too reckless to try to do right. The appellants were not protected by the fact of possession in Brown, because possession alone does not give the powei' to pass a valid title. Hence, when they bought of him they got no greater right than he had in the wheat. This need not be amplified or enforced, for the appellants concede that possession alone is not such evidence of ownership, or authority to sell, as that third persons have a right, as against the true owner, to rely thereon. The appellants offered to prove, on the trial, an established course of business in the trade between Buffalo and New York, in respect to transactions of the kind involved in this action. The court excluded the evidence, and the appellants excepted. We think that there was no error in that. The manner in which this transaction was to be carried out was determined by the papers which were made between the parties to it. If that manner differed from the established course of business, then that course was overridden by them. If it agreed with them, then evidence of it would neither make nor mar. The judgment appealed from should be affn-med. All concur, except Rapallo, J., not voting. Judgment affirmed. JOSEPH B. MOORS v. HENRY P. KIDDER et al. New Y'ork Court of Appeals, March 25 — June 7, 1887. [Eeported in 106 New York, 32.] Appeal from judgment of tlie General Term of the Supreme Court, in the first judicial department, entered upon an order made Jan. 28, 1885, which affirmed a judgment in favor of defendants entered SECT. VI.] MOOUS V. KIDDER ET AL. 299 upon an order dismissing the complaint on trial, and affirming an order denying a motion for a new trial. Reported below, 34 Hun, 534. The action was brought against the members of the firm of Kidder, Peabody, & Co., Baring Brothers & Co., and John B. Hobby, Sons, & Co. to recover possession of 95 cases of shellac. Kidder, Peabody, & Co. were bankers in Boston, and agents oL Baring Brothers & Co. John H. Hobby, Sons, & Co. were warehousemen in New York. On August 3, 1881, Kidder, Peabody, & Co., as such agents, under an agreement with Paul M. Swain, issued a letter of credit, which was confirmed by their principals. The following are copies of the mate- rial portions of said instruments : — Kidder, Peabody, & Co., ^ 40 State Street, >• Boston, August 3, 1881. ) Messrs. C. C. Bancroft & Co., Calcutta. Dear Sirs, — You are hereby authorized to value on Messrs. Baring Bros. & Co., London, for account of Paul M. Swain, Esq., Boston, Mass., by bills at three (3) months' sight for the cost of any shipment of goods via San Francisco and thence overland, or at three (3) to six (6) months' sight for the cost of goods by any other route, direct, or under through bills of lading to Boston or New York, to the extent of three thousand pounds sterling (say £3,000 stg.), and we hereby agree with the drawers, indorsers, and bona fide holders respectively of the bills drawn by virtue of this credit that the same shall be duly honored by Messrs. Baring Bros. & Co., upon presenta- tion at their banking-house in London, if drawn and negotiated within six (6) months from this date, and if accompanied by bills of lading for such goods filled up to the order of Messrs. Baring Bros. & Co., and by invoice of the same to their order for the account of whom it may concern. A duplicate of such invoices with consular certificate attached, together with one bill of lading, to be sent direct to us either by vessel or mail. Very respectfully, your obedient servants, Kidder, Peabody, & Co. Boston, August 3, 1881. Received the original of within letter of credit for three thousand pound sterling (say £3,000 stg.). In consideration whereof and of its confirmation by Messrs. Baring Bros. & Co., I hereby agree with Messrs. Baring Bros. & Co. and Messrs. Kidder, Peabody, & Co., respectively, to provide in London sufficient funds to meet the pay- ment at maturity of whatever bills may be drawn of negotiated by ^irtue of such credit, together with Messrs. Baring Bros. & Co., com- mission upon the amount of such bills. . . . And all property whicli shall be purchased by means of the within credit and the proceeds thereof and the policies of insurance thereon (which insurance to tlie amount of the value of such property we agree shall be duly effected), 300 MOORS V. KIDDER ET AL. [CHAP. IL together with the bills of lading for the same are hereby pledged and hypothecated to Messrs. Baring Bros. & Co. as collateral security for the payment as above promised, and also of any other sums which may at the time being be owing by us to Messrs. Baring Bros. &, Co., and shall be held subject to their order on demand with authority to take possession and dispose of the same at discretion for their security or reimbursement and "so to take possession and dispose of the same, either by themselves or their agents or by Messrs. Kidder, Peabody, & Co. . . . (Signed) Paul M. Swain. Against the said credit C. C. Bancroft & Co. drew their bill of exchange for account of Swain, for the cost of a hundred cases of shellac, of which the property in controversy is a part, and attached it to a bill of lading for the shellac to the order of Messrs. Baring Bros. &, Co., deliverable in New York. Baring Bros. &. Co. accepted said bill of exchange, and paid it at maturity. On the 18th of November, Swain called at the office of Kidder, Peabody, & Co., in Boston, and asked for the papers for the shellac, stating to Mr. Collins, the merchandise clerk for Kidder, Peabody, & Co., that "he wanted to enter them at the custom-house, and ware- house them for account of Baring Bros. «fe Co." Mr. Collins, having obtained Mr. Peabody's consent, delivered the shipping papers to Swain, and received the following receipt and agreement in exchange for them : — Boston, Nov. 18, 1881. To Messrs. Kidder, Peabody, & Co., Boston. Gentlemen, — I acknowledge receipt from you, as attorneys for Messrs. Baring Bros. & Co., of invoice and bill of lading of New York, one hundred (100) cases shellac, Rs. 15,678f Shipped by C. C. Bancroft & Co., on board S. S. C/o " Manchester," at Calcutta, and consigned to the order of Messrs. Baring Bros. & Co. and indorsed by you, as their attorneys, to me. Sucli invoice and bill of lading are delivered to me for the purpose of enabling me to enter the goods referred to in them at the custom-house. And I hereby agree to place the goods on storage for Messrs. Baring Bros. & Co., and subject to their order, and so that they may be ap- plied to the due performance of the agreement contained in the receipt signed by me for your letter of credit on them, No. 2,419, or any other letter of credit on them, through which such goods have been pur- chased, we agreeing to keep them covered by insurance against fire for account of and loss payable to Messrs. Baring Bros. & Co. It is understood that the said goods are to be warehoused in the name of Messrs. Baring Bros. &, Co., and warehouse receipts therefor handed to you for them. Very respectfully, your obedient servant, (Signed) Paul M. Swain. SECT. Vl] MOORS V. KIDDER ET AL. 301 Instead of doing as so agreed, upon receiving the shippiug-paperi, Swain entered these goods in the name of Wm. A. Brown & Co., his brokers, who obtained a certificate that they had made due entry of the shellac according to law, the goods being free from duty ; and a permit was given to land the same. On the 19th of November, Swain made application to plaintiff for a loan of $6,000, and offered in his application to give as security, among other things, ninety-five cases of the shellac, which he repre- sented that he owned and would give a warehouse receipt for. The application was accepted, and a portion of the loan made on that day on other collaterals. On the 21st, Swain gave an order on W. C. Casey, with whom the shellac was stored in New York, requesting hun to deliver to the order of plaintiff the ninety-five cases of shellac ; and on the 22d he forwarded that order, with a letter to Casey, asking him to send a non-negotiable receipt to plaintiff's order. A receipt was sent as requested ; on delivery of this to plaintiff, the balance of the sum loaned was advanced. Further facts appear in the opinion. Edmund liandolph Hobinson, for appellant. Charles B. Alexander^ for respondents. Finch, J. The entire argument of the appellant turns upon the proposition that Swain was the general owner of the shellac, and the Barings merely pledgees. Upon that assumption the argument runs smoothly to its conclusion, and encounters no serious obstacle. But the grave trouble is in the assumption itself, and the authorities which clash with it. The general subject was very thoroughly discussed in Farmers' and Mechanics* National Bank v. Logan, 74 N. Y. 568 ; and whether the doctrine there declared covers the facts now presented, and whether they have or do not have vital distinguishing features, are the real subjects for our consideration. The doctrine stated was, in substance, that where a commercial correspondent, however set in motion by a principal for whom he acts, advances his own money or credit for the purchase of property and takes the bill of lading in his own name, looking to such property as the reliable and safe means of reimbursement up to the moment when the original principal shall pay the purchase-price, he hecomss the owner of the property instead of its pledgee, and his relation to the original mover in the transaction is that of an owner under a contract to sell and deliver when the purchase-price is paid. The authorities which sustain and the reasons which justify the doctrine need not be repeated, and it is required only that we determine whether it applies to and settles the case in hand. There are some facts in the cited case which are not in this, and there are some in this which were not present in that ; and to these and their effect attention must be directed. In that case the purchase was made by the brokers or agents of him who, as the ultimate 302 MOOKS V. KIDDER ET AL. [CIIAP. II. veudee, may be termed couvenieutly, if somewhat inaccurately, the priucipal. Such brokers were buyers and sellers ou commission, and, it is said, were the commercial correspondents to whom the rule refers and who needed and received its protection ; while here the only commercial correspondents were Bancroft & Co. at Calcutta, ■who are not before the court, and whose rights are not in question. But Bancroft & Co. were the sellers and not the buyers of the shellac, in their relation to the parties concerned. They passed their title either to the Barings or Swain ; and w^iile they were commercial correspondents in some sense, the^^ were not such within the rule under discussion, for they advanced nothing on the credit of the property, and parted with title instead of taking it. The Barings, although bankers, were equally commercial correspondents, and tliey took title through the bill of lading and bought the property on their own credit. But if Bancroft & Co. be treated as the commercial correspondents, the case is not changed. Like Sears & Daw in the Logan Case, they bought the shellac on their own credit or with their own money, and got reimbursement by drawing upon the Barings, transferring title to them by the invoice and bill of lading to their order, as Sears & Daw did to the discounting banker in the Logan Case. The difference in the manner of making the advances is not material. In each case the bankers became owners or pledgees. In the Logan Case the purchasing correspondent took from the vendor a bill of sale, as well as a bill of lading to his own order ; but the Barings took only the bill of lading if the invoice to their order was not tantamount to a bill of sale. We do not deem that difference, if it was one, at all material. The title passed as effectually by the latter paper alone as if it had been preceded by the former ; for we have uniformly held that the bill of lading is the evidence of title, and is sufficient to vest the ownership and absolute control in him to whose order it is drawn. The purchase in the case cited seems to have pre- ceded the shipment, so as to make natural and convenient a bill of sale covering the interim. If it had been intended in this case to vest the general ownership in Swain and make him the purchaser, a bill of sale to him, or an invoice to his order, might naturally have been made ; but as to the Barings, the purchase and the shipment were practically coincident. In the cited case, again, the bill of lading, as attached to and sent forward wuth the discounted draft, had stamped upon it a statement addressed to the original priucipal, that the wheat and the insurance of it were pledged to the plaintiff as security for the payment of the draft ; and that the wheat was put into his custody in trust for that purpose, not to be diverted to any other use until the draft was paid, and tliat upon his accepting and paying the draft, the claim of the plaintiff would cease. This appears to have been an effort to put in words upon the bill of lading the legal meaning of the transaction. It was not necessary' to the certainty or scope of that legal meaning, and SECT. VI.] MOORS V. KIDDER ET AL. 303 amounted only to a precaution. A similar distinction was sought to be drawn in the cited case itself, between it and First Nat. Bank of Toledo V. Shaw, 61 N. Y. 283, 69 id. 624. In that the bill of lading was, when forwarded, accompanied by a letter explicitly directing the property to be delivered only upon payment of the specified purchase- money. The comment of the court in the Logan Case was : " Such agreement was but putting into terms the legal effect of the transac- tion in the case before us ; for we have shown by authority that the taking of the bill of lading in the name of the plaintiff for its account, and the discount of the draft by it on the strength thereof, did transfer to it the title to the wheat." Indeed, it seems to me that the title of the then plaintiff was rather weakened than strengthened by the mat- ter stamped upon the bill of lading ; for it speaks of the transaction as a pledge, when in truth it was an ownership ; and it appears to be for that reason that the court, in upholding the banker's title founded on the bill of lading, speak of the latter " even with the modification thereof made by the matter stamped upon it," and " even as modified." So that the absence of the special indorsement in the case at bar at least does not weaken the bearing of the Logan Case upon it. But a much more important suggestion made by the appellant is founded upon the terms of the written agreement between Swain and Kidder, Peabody, & Co. as agents of the Barings, which was intended to govern and control the entire transaction. They issued a letter of credit addressed to Bancroft & Co., and authorizing them for account of Swain to value on the Barings by bills for three thousand pounds sterling, and promised to accept and pay those bills " if accompanied by bills of lading for such goods filled up to the order of Messrs. Baring Bros. & Co., and by invoice of the same to their order, for account of whom it may concern." Swain, on his part, agreed to provide funds in London to meet such bills as should be drawn at their maturity, and that " all property which shall be purchased by means of the within credit, . . . together with the bills of lading for the same are hereby pledged and hypothecated to Messrs. Baring Bros. & Co. as collateral security for the payment as above promised, . . . and shall be held subject to their order on demand, with authority to take possession and dispose of the same at discretion, for their security and reimbursement." The argument upon this provision rests upon the words "pledged and hypothecated" and " collateral security," and avers as a consequence that Swain was, within the contemplation of the parties, general owner of tlie shellac, and the Barings merely pledgees. It is observable that Swain did not so understand it, for in his testimony he said: " Kidder, Peabody, & Co. were the owners of these goods till they arrived in Boston." It has already been mentioned that a similar expression was used by the plaintiff in the Logan Case in the matter stamped upon the bill of lading, describing the wheat as " pledged " to the plaintiff, and as " security " for the payment of the draft ; and so little did the use of 304 MOORS V. KIDDER ET AL. [CHA.P. 11. the inapt words affect the plain and unequivocal substance of the trans- action in the mind of the court, that the use of the word " pledged" was not even made the subject of remark. It is further quite evident that from the moment of the shipment and the delivery of the bill of lading, the absolute /ws dlsponencU was in Kidder, Peabody, & Co., by the very terms of Swain's agreement. They were at liberty to '• dispose " of the property " at discretion," and either for " security " or reimbursement. It is also to be noted that what is spoken of as " pledged " is not merely the goods or the property, but the bills of lading also. These documents carry the title as well as the right of possession, and the pledge or hypothecation is expressly applied to both. The meaning, assuredly, was that the title should pass. Very likely, as is suggested for the defendant, the transfer was rather in the nature of a mortgage in which the title passes than in that of a pledge in which the pledgor is general owner. Here, then, we have a case where no title was attempted to be given to Swain, where it was given to the Barings by the bill of lading to them, where they paid for the property by their own credit and money, where it was the very pith of the adventure that the shellac should furnish the means of meeting the price, where the invoice was to be made to their order, where the possession was to be theirs, where they were to have the right of dis- posal at discretion, and Swain was to have no control until payment of the draft. In such a case he could not be general owner, and an mference to that effect from an inapt expression cannot be indulged. So far the case, in our judgment, cannot be distinguished from that against Logan, upon the authority and reasoning of which the Barings must be deemed owners, and not merely pledgees. The settlement of that point disposes of the case as affected b}' tho factor's acts of this State and Massachusetts, except in a single respect. It is not pretended that the plaintiff is protected under the provision which makes the transfer by an agent intrusted with the evidence of title and which has been made upon " the faith thereof" valid under some circumstances, even against the real owner ; for the bill of lading with its indorsement was not shown to the plaintiff, and in no manner affected his action. But the appellant insists that there was evidence enough to go to the jury that Swain was intrusted with the property for the purpose of a sale, or of obtaining advances upon it, and so, under the factor's act, the plaintiff's title as pledgee is to be protected. The course of business brought the shellac to the custom house and into the " general order" stores. From that custody it could only be removed by some action of Kidder, Peabody, & Co. by force of their bill of lading. Swain applied for the papers to Mr. Collins, who was their merchandise clerk, and who testifies: "I asked what he was going to do with the papers, and he said he wanted to enter them at the custom house and warehouse them for account of Baring Bros. & Co." Collins repeated that request to Peabody, who gave his con- sent. Thereupon Swain signed a receipt for the papers, which specifies SECT. VI.] MOORS V. KIDDER ET AL. 305 explicitly this one sole purpose for which they were put in his control ; and thereupon they were indorsed in blank to enable Swain to make the entry and to warehouse the goods as agreed. Instead of doing that, Swain entered them in the name of his broker, and then pledged them to the plaintiff as security for a loan, the pledgee trusting to the representations of Swain and the warehouse receipt which he obtained. Peabody, so far as he was a party to the occurrence, fully corroborates Collins ; and Swain was not thereafter called to deny, and did not deny, their version of the transaction. All that was later shown in rebuttal was a copy of the complaint in an action begun by Kidder, Peabody, & Co. against Swain and Casey, who was the warehouseman. The opinion of the General Term shows so fully that the statements of that complaint, taken together, were in no manner inconsistent with the evi- dence given for the defence as to make a repetition needless ; and we may confine our attention to the evidence of Swain, and what it is claimed to establish. Invariably the manner of dealing between the parties was like that developed in this case, so far as the written agreements were con- cerned. These were in two forms ; one of them, that which we have described, which intrusted the shipping-papers to Swain solely tliat he might enter and warehouse the goods in the name of Bariugs, and the other, which recited their sale and gave them into the custody of Swain to make delivery and collect the proceeds which were stipu- lated to " belong " to the Barings and to be handed over to them. Swain could not name a single instance in which one or the other of these papers was not signed by him, but it was sought to show by him that the action under them was loose, and he was permitted to act dif- ferently. He said that he had been in the habit of entering the goods, sometimes in his own name, and of selling or pledging the goods and paying the proceeds long after to meet the drafts maturing in London. Under the second form of receipt a sale was contemplated and payment of proceeds over to Kidder, Peabody, & Co., and that they did not demand them immediately upon the sale and often accepted them later, although in time for the drafts, shows simply their confidence in Swain, but did not make their money his, and serves sufficiently to explain Peabody's alleged admission tliat Swain liad been permitted to do as he pleased. And it is noticeable that the one single instance in which Swain says he can remember the facts of the deviation from the written stipulation was one under the second form of receipt, in which after a sale he did not deliver over the pro- ceeds promptly upon obtaining them. But he admits th.at he never had any consent to warehouse the goods in any other name than that of Barings, and out of thirty-four instances in which the papers were put in evidence, Swain, with the aid of the books, was able to name but four instances in which he warehoused in his own name and pledged the goods. He does not pretend that the fact came to tlie knowledge of Kidder, Peabody, &, Co., and any such knowledge is denied by them- 306 FIRST NATIONAL BANK OF BATAVIA V. EGE. [CIIAP. XL The argnmcnt here is that they must have known, and the jury might have found that they did know. Our opinion is with tliat of the courts below, that such a finding would not have been warranted. All that Swain's evidence tends to show is, that in transactions under form No. 1, he often did not at once turn over the warehouse receipts and was not questioned about them, and in transactions under form No. 2, was not immediately called upon for the proceeds received. There was not enough to destroy the force, and work a modification in the written stipulations of the parties, and no verdict to that effect would have been justified. The judgment should be affirmed with costs. All concur except Rapallo, Earl, and Peckham, JJ., dissenting. Judgment affirmed. 6 FIRST NATIONAL BANK OF BATAVIA v. HORATIO N. EGE. New York Court of Appeals, March 2 — April 10, 1888. [Reported in 109 New York, 120.] RuGER, C. J. This action was brought by the alleged owner, to re- cover the value of certain i^ersonal propert}', claimed to have been wrongfullj" converted b}' the defendants. The conversion is alleged to have been established b}' proof, that the defendants had in their possession on the 9th day of June, 1881, the property- claimed, and that the plaintiff then demanded the same, and they refused to deliver it. Such evidence would, of course, authorize a finding of conversion of the propertj-, and if accompanied by evidence of title would justify the recoveiy. The claim of title by the plaintiff is somewhat confused b}- reason of the peculiar mode adopted b}- one Williams, the general owner, in consigning produce purchased bj- him, to the defendants to sell on commission. Williams was a produce dealer, residing at Bata- via, N. Y., and had for several years been in the habit of sending his property bj' railroad to the defendants, commission merchants in New Y''ork, to sell. He was accustomed when shipping goods, to obtain from the carrier two bills of lading, one called an original, and the other marked as a duplicate. The originals were sent directly to the defend- ants, and the duplicates were retained In- Williams and attached to drafts drawn upon the defendants, which he procured to be discounted by the plaintiff. These drafts were frequently drawn without particular regard to the value of the propert}' described in the bills attached there- to, and were usuall}' accepted or rejected bj" the defendants according to the condition of Williams' account, and the value of the consigned property in their possession. This was the general course of business pursued by the parties, and was known to and apparentl}' acquiesced in l>y all. The particular transaction in question grew out of the SECT. VI.] FIRST NATIONAL BANK OF BATAVIA V. EGE, 307 dealings occurring between Sept. 29, 1879, and Feb. 18, 1880. Dur- ing that period Williams had drawn one hundred and forty-five drafts, accompanied by the same number of bills of lading, upon the defendants aggregating in amount $59,025. The first one hundred and thirty-five drafts, amounting to $53,725, were accepted and paid by the defendants, but the last ten, drawn between Jan. 31, 1880, and the 13th of February, thereafter, and aggregating $5,300, were not accepted, and, together with the bills of lading accompanying them, were returned to the plaintiff as dishonored bills. The entire property covered by the one hundred and forty-five bills of lading, as shown by its subsequent sales, produced but $52,065.52, so that by the payment of the first one hundred and thirty-five drafts, the defendants had paid to the plaintiff an amount in excess of the total proceeds of the property consigned. The claim of the plaintiff is that the defendants had no right to apply the proceeds of the prop- erty received by them under the last ten bills of lading to the payment of liabilities incurred through the acceptance of previous drafts, and we are of the opinion that this contention is correct. The practice of carriers in issuing duplicate bills of lading to consignors of property shipped for sale has been much disapproved by the courts, for the reason that it affords a convenient opportunity for the commission of frauds by consignors, as well as subjecting the carrier to the hazard of making incorrect delivery of the property. Glyn, Mills, & Co. v. E. and W. India Dock Co., L. R. 7 App. Cases, 591. No copies of the bills of lading issued in these transactions appear in the case, but we must assume that, in accordance with the usual custom in regard to such instruments, they authorized the delivery of the property by the carrier to the consignees named therein, according to the order in which they were presented to it. Kemp v. Falk, L. K. 7 App. Cases, 573 ; Glyn, Mills, & Co. v. E. and W. India Dock Co., supra. No question, however, arises in this case over conflicting claims between holders of respective bills of lading, so there can be no claim that the defendants acquired title to the property consigned, by virtue of tlie receipt of any bills by them. It was said by Lord Westbury, in deciding the case of Barber 7k Meyer- stcin, L. R. 4 E. and I. App. 317, " there can be no doubt, there- fore, that tlie first person, who, for value, gets the transfer of a bill of lading, though it be only one of a set of three bills, acquires the property ; and all subsequent dealings with the other two bills must, in law, be subordinate to that first one, and for this reason, because the property is in the person who first gets a transfer of the bill of lading. It might possibly happen that the ship-owner, having no notice of the first dealing with the bill of lading, may, on the second bill being pre- sented by another party, be justified in delivering the goods to tliat party. But although that may be a discharge to the ship-owner, it will in no respect affect the legal ownership of the goods." These expressions are approved in Glyn, Mills, & Co. v. E. and W. 308 FIRST NATIONAL BANK OF BATAVIA V. EGE. [CIIAP. 11. India Dock Compaii}', siqjra, and undoubtedl}' state the conditions of the law in P^nglund on the subject at this time. See, also, Lickbanovv V. Mason, 2 T. R. 63, and notes to that case in Shirley's Leading Cases in Common Law, 204, Blackstone Series. The possession of these bills, therefore, gave the defendants no title to the property described therein, but simpl}" conferred upon them the right to receive it from the carrier, and hold it subject to an accounting with the con- signor when sold, or to the true owner when he should appear. If, however, before incurring liabilities upon the credit of such consign- ment, the}' received notice of its previous transfer to another party for value, they could not thereafter deal with the property to the prejudice of the rights of such party. B}- taking a transfer of a bill of lading from the consignor and discounting a draft upon the faith thereof, the plaintiff acquired title to the property described therein to the extent of the draft discounted by it, paramount to the claims of any other party. This would clearly be so unless such party had in good faitli parted with value in reliance upon the possession of the property law- fully acquired. Commercial Bk. of Keokuk v. Pfeiffer, 108 N. Y. 242, and cases therein cited. When a consignee of i^roperty to sell accepts drafts upon the faith of such consignment, he acquires the right to sell the property and appl}' its proceeds in payment of such drafts, but if such proceeds are insuf- ficient for such purpose he must rely upon the responsibility of the drawee alone, to repa^' any deficiency. By the mere receipt of subsequent ship- ments he acquires no lien thereon, to the prejudice of those who have advanced money upon them, and taken transfers of bills of lading, to secure such advances. The defendants had notice, by the uniform course of dealing between the parties, and the invariable practice of AVilliams in raising money of tlie plaintiff to make purchases, that the consignments in question had been transferred to the plaintiff, and they could not prejudice its rights thus acquired, except by incurring in good faith new liabilities upon the faith of Williams' apparent ownership and their possession of the prop- erty, even if they could do so under such circumstances. It was the duty of the defendants, when they received notice of the ownership of consignments by the plaintiff, to hold and dispose of them on its ac- count, applying the proceeds to the payment of the specific drafts accompanying the consignment, and if insufficient for that purpose to charge the deficiency to their consignor. The plaintiff, however, never incurred any liability to the defendants on account of the acceptance and payment of drafts by the defendants, for a greater amount than the value of the property consigned, and had the right to consider each subsequent consignment, as a new dealing, to be treated according to the specific rights thereb}' acquired. Witli respect to the ten bills of lading in question, the evidence shows that the plaintiff advanced money upon the transfer thereof to it, and acquired title to the property therein described before any other SECT. VI.] DOUGLAS V. PEOPLE'S BANK. 309 right or claim could have attached thereto, and it is clear that they had the right to have its proceeds applied in satisfaction of the respective drafts accompanying the respective consignments, or to have the prop- ert}' delivered to them upon demand. Some proof was given tending to show that the plaintiff was ignorant of its legal rights until after all the consignments were received by the defendants ; but there is no evidence that the defendants were prejudiced by this conduct of the plaintiff, or that it was estopped from asserting its legal ownership by any steps taken b}' the defendants in reliance upon the plaintiff's conduct. It is quite possible that the defendants might thereby have felt authorized to pursue a course of business which would not otherwise have been adopted ; but this affords no reason wh}' courts should disre- gard the plain legal rights of parties, unless some element of estoppel, as against such parties, is introduced into the transaction. The fact that a party has on other occasions omitted to enforce his clear legal i-ights as to some property, affords no reason why he should be defeated as to legal claims upon other property, when he does finally assert them. The judgment of the General Term should be affirmed. All concur. Jiidffment affirmed.^ DOUGLAS, Receiver, v. PEOPLE'S BANK OF KENTUCKY. Kentucky Court of Appeals, October 18, 1887. [Reported in 86 Kentucki/, 176.] Bennett, J. The appellee brought suit in the Louisville Chancery Court against the appellant, and the firm of Moise, Barbour, & Co., partners in the grain business in the city of Louisville. The appellee 1 " Tlie doctrine is that where a commercial correspondent advances liis own money or credit for a principal for the purchase of property for such priiicijial, and takes the bills of lading in his own name, looking to the i)roperty as security for reimburse- ment, sucli correspondent becomes the owner of the property, instead of the pledgee, up to the moment when the original principal shall pay the purchase-jirice, and the correspondent occupies the position of an owner under a contract to sell and deliver when the purchase-price is paid. This doctrine is stated in Moors r. Kidder, 106 N. Y. .32, and founded upon the cases cited by Finch,.!., in that case. Nothing therein gives color to tlie iilea that the correspondent's ownership is of that character which would permit his exaction, even though agreed to by the principal, of a general lien upon the jjroperty for other and prior indebtedness of the principal as against one in the situa- tion of St. Amant. The correspondent's position is one of owuersliip so far only as is necessary to secure him for the advances he made upon the merchandise described in the bill of lading, and in such a case as this he is boiind to sell upon receipt of the pur- chase-price from the principal, or, in other words, upon receipt of the amount he ad- vanced upon its credit. In no other sense is the correspondent the owner of the property." Drexel v. Pease, 133 N. Y. 129, 136. 310 DOUGLAS V. people's BANK. [CHAP. IL sought by the suit to recover judgment against the firm of Moise, Barbour, & Co., on a note for $5,000 which the firm executed to the appellee. The appellee also sought to recover judgment against the appellant for the value of corn and rye, the title to which was evidenced b}- six bills of lading, executed by the appellant as a common carrier, by which the appellant undertook to deliver to the firm of Moise, Barbour, & Co., in the city of Louisville, the grain mentioned in the bills of lading. Each bill of lading shows that the grain therein men- tioned was shipped to the order of the shipper, per advice of Moise, Barbour, & Co., and each bill of lading was indorsed by the shipper; and that the firm of Moise, Barbour, & Co. was the owner of each of them. It was alleged b}- the appellee that Moise, Barbour, »&; Co., while they were the owners of these bills of lading, transferred and delivered them to it, in pledge as collateral security- to the above-named note, and that the note was due and unpaid ; and that the appellant refused to deliver the grain to the appellee. The appellee upon the foregoing allegations asserted its lien upon the grain, and sought judgment against the appellant for its value. The appellant put in issue the allegations of the appellee in reference to these matters ; and a trial of the case re- sulted in a judgment against the appellant for the value of the grain. This appeal is prosecuted from that judgment. A bill of lading does not possess the characteristics of bills of ex- change, or other negotiable instruments, placed upon the footing of bills of exchange. The peculiar characteristics of these instruments rest either upon statute or commercial usage sanctioned by express decision. A bill of lading has neither of these foundations to rest upon. It does not represent money, but propert}'. No one ever supposed that a written obligation to pay so much in propert}-, or to deliver such and such propertj', possessed the characteristics of negotiability in the sense of a bill of exchange, or other instrument placed upon the footing of a bill of exchange. Such instruments represent mone_y in commercial usage ; and the innocent holder for value in the usual course of trade is protected against all equities of the antecedent parties. Kor is such innocent holder's right affected by any infirrait}' in such instru- ments. They are protected in some cases against the claim of the rightful owner, whereas the indorser or assignee of a bill of lading must trace his title back to its true owner. lie has no greater right than the true owner. When it is said that a bill of lading is negotiable, it is only meant that its true owner may transfer it by indorsement or assign- ment so as to vest the legal title in the indorsee. See Pollard v. Vinton, 105 U. S. 7. A sale and deliver}' of personal property b}' the owner perfect the title in the vendee. He thereb}- acquires a right to the property which is superior to antecedent equities and liens of which he had no actual notice, or such notice as the law requires him to take cognizance of. Both a contract of sale and delivery of personal property are necessary to the completion of title in the vendee ; he thereby acquires a right to SECT. VI.] DOUGLAS V. PEOPLE'S BANK. 311 the property- which is superior to antecedent equities, liens, or execu- tor}- sales, as between the vendor and third persons of which he had at the time of his purchase no actual notice, or such notice as the law requires him to take cognizance of. And where the property is in transit by the carrier, the owner may deliver it to the purchaser sym- bolically. This may be done by the owner's Indorsement of the bill of lading to the purchaser. It is said, in Newsom v. Thornton, 6 East, 41, that "a bill of lad- ing will pass the property upon a bona fide indorsement and deliver}-, when it is intended so to operate, in the same manner as a direct delivery of the goods themselves would do, if so intended ; but it cannot go further." In Hatfield v. Phillips, 9 Mees. & W. 648, it is said : " As soon as the goods are landed and warehoused in the name of the holder, he then becomes possessed of the goods themselves in the eye of the law, and derives his power not from the bill of lading, but from such pos- session. But while the cargo is still at sea, or the transit continues in any other form, the bill of lading stands for and represents the goods themselves, and will therefore enable the assignee to do as much, but no more, than he could have done if they had actually arrived and come to his possession." In Meyerstein v. Barber, L. R. 2 C. P. 38, 45, it is said : " The bill of lading represents them [the goods], and the indorsement and delivery of the bill of lading operate exactl}' the same as a deliver}' of the goods themselves to the assignee after the ship's arrival would do." So, the assignment of a bill of lading for value, while the goods are in transit, is limited to the effect of symbolizing their sale and deliver}' ; and the assignee is thereby invested with all the rights of a purchaser with actual delivery of possession, but no more. It is also well settled that the owner of a bill of lading may pledge the same as collateral security for a debt ; and, as it is indispensable to the validity of a pledge that the actual possession of the property pledged should pass to the pledgee, so the possession of the property which is sought to be pledged while it is in transit may be effected by trans- ferring the bill of lading. Such transfer of the bill of lading is regarded as equivalent to investing the i)ledgee with the actual possession of the property. Such pledge does not invest the pledgee with title to the property. The title remains in the pledgor ; but the pledgee acquires a lien upon the property for the security of his debt; and this lien, as long as he retains the possession of the property, either actual or sym- bolical, is a legal lien which is paramount to, and will therefore prevail against, any prior equities existing on behalf of third parties of which the pledgee liad no notice, or of whicii he was not required by law to take notice. See Petitt v. Bank, 4 Bush, 338. As before stated, the grain mentioned in the six bills of lading in controversy was made, by the terms of the bills of lading, deliverable to the shipper's order. Therefore the title to the grain did not pass to 312 DOUGLAS V. people's BANK. [CILVP. IL the consignees, Moise, Barbour, «fe Co., but remained in the shipper; and he could only pass his title to the grain to the consignees by an indorsement of the bills of lading. And the appellant, the railroad company, had not the right to deliver the grain to the consignees, or any one else except upon the order of tiie shipper. The shipper reserved to himself the right of property in the grain ; and the railroad company undertook to tiansport it as his property, and to deliver it only upon his order ; and it was the contract duty of the railroad com- pany so to do ; and if the company delivered the grain to Moise, Bar- bour, & Co., without their being the owners of it, which fact could onl}' be manifested by the exhibition of the bills showing that they were the owners of them b}' the indorsement of the shipper, the compan}' thereb}- rendered itself liable to the true owner of the grain for its value. See 2 Daniel, Neg. Inst. § 1740; Hutch. Carr. §§ 130, 133. The appellant, the railroad company, delivered the grain to Moise, Barbour, & Co., and there is no doubt but, at the time of the delivery, they were the owners of the grain which the bills of lading represented. The ap[)ellee concedes this fact ; but it contends that, at the time of the deliver}-, it was in the actual possession of the bills of lading, and was the owner of them as pledge for the security of Moise, Barbour, & Co.'s indebtedness to it, whereby it had a lien on the grain itself to secure said indebtedness. If it be true that, at the time the railroad company delivered the grain to Moise, Barbour, & Co., the appellee held the actual possession of these bills of lading in pledge for the security of their indebtedness to it, and the railroad company delivered the grain to Moise, Barbour, & Co., notwithstanding that fact, and without requiring them to show by the production of the bills of lading that the}- were the owners of the grain, they are in that case liable to the appellee for its value. On the other hand, if the grain was deliv- ered to Moise, Barbour, & Co., by their exhibiting the bills of lading to the railroad company, which showed that they were the owners of them and entitled to them, and that Moise, Barbour, & Co. were enabled, by the conduct of the appellee, to thus exhibit said bills as their own, for the purpose of olitaining the delivery of the grain to themselves, and whereby they did obtain its delivery to themselves, then the appellee should not be allowed to recover the value of the grain from the appellant. The railroad company's cashier swears that the company's place of switching its freight trains was in Jefferson ville, where the freight re- mained until orders were received where to deliver it ; that the bills of lading were presen ,ed by Moise, Barbour, & Co. at the window of the cashier's office, and the numbers of the cars transcribed from the bills of lading to the books of the company, and the cars ordered over to Louisville, and the grain there delivered. While the cashier swears that he could not remember that these identical bills were presented at the cashier's office by Moise, Barbour, & Co., yet he is positive that SECT. VL] DOUGLAS V. PEOPLE'S BANK. 313 the}' were so presented, properly indorsed, for the reasons that all bills of lading made to order of the shipper were required to be exhibited properl}' indorsed before the company would deliver the grain, and that a memorandum of each car containing the grain was taken directly from each bill of lading, from which memorandum the car was ordered over to Louisville. And while unable to recall to memory the particular bills of lading in controversy', he remembers that no grain was delivered to Moise, Barbour, & Co. on bills of lading requiring the grain to be deliv- ered to the order of the shipper, unless they presented the bills properly indorsed. The chancellor was of the opinion that the cashier of the company was mistaken as to these particular bills of lading having been presented by Moise, Barbour, & Co. We think that the evidence in the case fails to show a different state of case. His evidence is strong, consistent, and dii'ect, and. is circum- stantially corroborated by the evidence of the appellee's cashier. He swears that it was the agreement between the appellee and Moise, Bar- bour, & Co. that the latter might withdraw the bills of lading deposited from time to time, by depositing other bills of lading of equal value in their place. The object of allowing the withdrawals and substitutions was to enable Moise, Barbour, & Co. to receive the freight on the bills of lading withdrawn. He also swears that not only Moise, Barbour, & Co., but their clerk, came to the bank whenever it suited them, and took the bills of lading in hand, and made such withdrawals and substitu- tions as the}' saw proper, without the supervision of any of the bank officers, and without their knowledge of what bills of lading were with- drawn, or what left in their place, if an}'. So we have no proof that these bills of lading were in the actual possession of the appellee at the respective times the grain was delivered ; but we have proof that Moise, Barljour, & Co. had the appellee's authority to withdraw these bills of lading for the purpose of receiving the freight that thev repre- sented. We also have proof that they and their clerk handled the bills of lading at pleasure, and made such changes as they pleased. It also appears that they had the opportunity, furnished b}' the appellee, to withdraw these bills for the purpose of receiving the freight thereon, and then return them. With these facts before us, we find nothing in the record that directl}', or by necessary implication, contradicts the evidence of tlie company's ca.shier. While it may be admitted that the railroad company was not punc- tiliousl}' exact in dealing witli Moise, Barbour, & Co. as to the delivery of the grain, yet it may be regarded as a fact that the bills of lading properly indorsed were i)resented to the company by INIoise, Barbour, & Co., who were in fact the legal owners of the grain wliich the bills represented, but suV)jcct to the appellee's lien ; and that the grain was delivered to them on the faith of the presentation of the bills of lading properly indorsed, and the apparent ownership in Moise, Barbour, & Co. ; and that the bills of lading were presented, and the grain deliv- ered by the conduct and authority of the appellee. Therefore the pro- 314 McARTHUR CO. V. OLD SECOND NATIONAL BANK, [CHAP. IL position to allow the appellee to recover the value of the grain from the appellant, under these circumstances, contains no element of fair deal- ing, no equit}-, no legal right. It, the appellee, is estopped to gainsay and undo what was authorized and sanctioned b}' its conduct. The judgment of the lower court is reversed, and the case is remanded, with directions to dismiss the appellee's petition. W. & A. McARTHUR CO. v. OLD SECOND NATIONAL BANK OF BAY CITY. SuPEEME Court of Michigan, October 4 — December 12, 1899. [Reported in 122 Michigan, 223.] Long, J. The xalaintiff is in the milling business, having its office and place of business at Cheboygan, this State. The First National Bank of Cheboygan does business there. The defendant does a banking business at Bay City. The plaintiff, at Cheboygan, on March 5, 1898, shipped a carload of wheat to Bay City, which had been sold by it to J. N. McDonald & Son, of Bay City. Upon such shipment it received from the railroad company a bill of lading showing that the wheat was consigned to itself at Bay City. Plaintiff indorsed the bill of lading in blank, made a draft upon J. N. McDonald & Son, and delivered the draft, with the bill of lading so indorsed, to the Cheboygan bank for collection. The Cheboygan bank forwarded the draft, with the bill of lading so attached, to the defendant, at Bay City, with the following letter: — "Cheboygan, Mich., March 7, 1898. « Old 2d, Bay City. " Dear Sir : Inclosed as stated below for collection. "Yours respectfully, "A. W. Ramsay, Cashier. "J.N. McDonald & Son. No P. $600. B. L. attached. Hold for arrival of goods, if necessary." The draft was dated March 5, 1898, made payable at sight, and in- dorsed by the Cheboygan bank: "Pay to Old Second National Bank, or order." The bill of lading was in the usual form. In the body of the bill, under the name of the consignee, was a statement to the railroad company: "Notify J. N. McDonald & Son, Bay City, Mich." It described one car of wheat. No other information or direction "was given to the defendant, and it appears that the defendant had no SECT. VI.] McAETHUR CO. V. OLD SECOND NATIONAL BANK. 315 notice of the dealings between McArthur & Co. and J. N. McDonald & Son, except such as could be inferred from the papers above set forth. The carload of wheat arrived in Bay City March 9, and the railroad company, acting upon a waybill, which is a duplicate of the bill of lading, notified J. N. McDonald & Son of its arrival. The letter of instruction, draft, and bill of lading reached the defendant ]\Iarch 7, and on that day was presented to J. N. McDonald & Son ; but, the wheat not having arrived then, nothing was done. On March 11, the bank presented the draft to J. N. McDonald & Son, who wrote their acceptance thereon, and the bill of lading was delivered to them by the defendant. They presented the bill of lading, with the indorse- ment in blank of McArthur & Co. thereon, to the railroad company, who immediately delivered to them the carload of wheat. It appears that J. N. McDonald & Son were insolvent, and the draft was never paid. This suit was brought against the defendant to collect the amount of the draft, on the ground that the bank had been negli- gent in delivering the bill of lading to J. N. McDonald & Son upon the acceptance of the draft, and without the draft being first paid. There is no contention upon the facts. Upon the statements made by counsel in the court below, the court directed the verdict in favor of the plaintiff, and entered judgment thereon for the amount of the draft and interest, amounting to $630.30. Defendant assigns error. It is the claim of defendant's counsel that, under the circumstances above stated, it was the duty of the defendant bank to deliver the bill of lading to the draw^ee upon acceptance of the draft. This claim is based upon the proposition that a sight draft is a time draft, as it is entitled to three days of grace, and that, the consignor having in- dorsed the bill of lading, and sent the same forward with this time draft, with no instruction to hold the bill of lading imtil the draft was paid, such action conclusively negatives the presumption of intention to have the bill held until the draft was paid. It is conceded that such presumption might arise from the fact that the shipment Avas made to the shipper as consignee, but it is urged that such presumption is conclusively rebutted by the above facts. It is undoubtedly w^ell settled that a sight draft is entitled to three days of grace. Story, Bills, § 342 ; 2 Edw. Bills & N. (3d Ed.) § 714 ; Cribbs v. Adams, 13 Gray, 507 ; Lucas v. Ladew, 28 Mo. 342 ; Thorn- burg v. Emmons, 23 W. Va. 334 ; Walsh v. Dart, 12 Wis. 035; Green V. Raymond Bros., 9 Neb. 295. It is also well settled that a blank indorsement upon a bill of lading is sufficient to pass the legal title to the goods, and that a delivery of goods by a common carrier to the consignee thereof is made at the peril of the carrier, unless, when made, the consignee surrenders the bill of lading either made to or indorsed to himself. Coleb. Coll. Sec. § 381 ; Hobart v. Littlefield, 13 R. I. 341 ; Gates v. Pvailroad Co., 42 Neb. 379 ; Weyand v. Pvailway Co., 75 Iowa, 580 (1 L. R. A. 650, 9 Am. St. Rep. 504). But we cannot agree with the contention of counsel for defendant that the fact that 816 McARTHUR CO. V. OLD SECOND NATIONAL BANK. [CHAP. II. the bill of lading was indorsed in blank, and forwarded with the draft, [under the circumstances here, negatives the presumption that the bill lof lading was to be held until the draft was paid. The draft was sent to the defendant, as stated in the letter accompanying, for collection. The carload of wheat was not consigned to J. N. McDonald & Son, but to the plaintiff, who was the shipper. For the purpose of per- mitting J, N. McDonald & Son to at once get the wheat into posses- sion, the bill of lading was indorsed, so that, when the draft was paid, there was nothing further to do by the defendant but to deliver the bill of lading to J. N. McDonald & Son, and the title to the wheat would at once pass to them. Counsel, however, contends that the case is no different than as though the wheat had been consigned to J. N. McDonald & Son. There is, however, this difference : In case the consignment had been made direct to J. N. McDonald & Son, and no directions given for collection of the draft, no presumption would have arisen that it was intended as a cash transaction, and the title not to pass until payment ; but, the property being consigned to the shipper himself, showing that something further was to be done by him to pass the title, the presumption was that it was a cash transaction; and we think this presumption was not negatived by the fact that the draft was entitled to three days' grace, and considered in law as a time draft. ^Ye are satisfied that the transaction did not import a sale of the goods upon credit. In Security Bank of Minnesota v. Luttgen, 29 Minn. 363, it appeared that a merchant, having received an order for goods from a foreign correspondent, shipped the goods by a common carrier, taking bills of lading, by the terms of which the goods were deliverable at their destination to the shipper or his order. The merchant then drew bills of exchange for the price of the goods on the person ordering them, payable to the merchant's own order thirty days after sight. Attach- ing the bills of lading, indorsed in blank, to the drafts, and indorsing the latter in blank, the merchant had the drafts discounted at the bank, it being agreed in parol with the bank that the bills of lading should not be delivered until the drafts were paid. These drafts were sent forward by the bank to its correspondent, who presented them for acceptance, and they were duly accepted. Upon the acceptance of the drafts, and without payment, the bills of lading were delivered to the drawee, and the goods thus passed into his hands. The drawee shortly after this became insolvent, and the drafts were not paid. Action was commenced to recover against the drawer upon his in- dorsement of the drafts. The defence urged was that the bills of lading were to be treated as security for the payment of the drafts, and that the plaintiff had no right to deliver them to the drawee until such payment. It was held that, independent of the parol agreement, and considered as a matter of merely legal interpretation, the trans- action did not import a sale of the goods on credit, or determine tliat SECT. VI.] McAETHUE CO. V. OLD SECOND NATIONAL BANK. 317 the drawee was entitled to the bills of lading upon his acceptance of the drafts, and without payment. The court said : — " The taking of bills of lading making the goods deliverable to the order of the shipper, rather than to the person for whom they are , ultimately destined, has been considered ' almost conclusive ' proof of/ an intention on the part of the consignor to retain t\\QJits d'lsponendi, although subject to be rebutted ; " citing Benj. Sales (3d Ed.), 382, 400; Dows v. National Exchange Bank, 91 U. S. 618; Farmers & Mechanics' Nat. Bank v. Logan, 74 K. Y. 568 ; Seymour v. Newton, 105 Mass. 272 ; Jenkyns v. Brown, 14 Adol. & E. (N. S.) 496 ; Mason V. Railway Co., 31 U. C. Q. B. 73. In the case of Bank v. Cummings, 89 Tenn. 609 (24 Am. St. Rep. 618), in an opinion written by Mr. Justice Lurton, it was held, upon a very similar state of facts as found in the Minnesota case, that, where bills of lading attached to time drafts left with a bank for col- lection are taken to the order of the vendor and drawer, instead of to the vendee and drawee, such fact is, when not rebutted by evidence to the contrary, almost conclusive to show that the bills were not to be surrendered to the vendee until the drafts should be paid, and is sufficient to require the bank to hold the bills until such payment. This is the rule recognized by Elliott in his work on Railroads (vol- ume 4, § 1426). Counsel for defendant cites many cases ^ which he claims have a tendency to support his contention. Those cases are readily distin- guishable from the present and from the Minnesota and Tennessee cases. We do not deem it necessary to discuss the cases cited, as we are satisfied that a draft drawn as this was, and accompanied by a bill of lading showing that the shipper had consigned the goods to himself, is a clear indication that the shipper did not intend to extend credit. The court very properly directed the verdict in favor of plaintiff. The judgment must be Affirmed. Grant, C. J., Montgomery and Hooker, JJ., concurred. Moore, J., did not sit. 1 Viz. Lanfear v. Blossman, 1 La. Ann. 143 (45 Am. Dec. 76) ; Moore v. Louisiana Nat. Bank, 44 La. Ann. 99 (32 Am. St. Rep. 3.32); Nat. Bank of Commerce v. Merchants' Nat. Bank, 91 U. S. 92 ; Woolen v. Erie Bank, 12 Blatchf. 359 ; Marine Bank v. Wright, 48 N. y. 1. 318 STATE V. O'NEIL. [CHAP. II. SECTION VII. Transfer of Title, when Goods are sent C. 0. D. STATE V. JOHN O'NEIL. Vermont Supreme Court, October Term, 1885. [Reported in 58 Vermont, 140] RoYCE, C. J. The first and most important question presented by these cases, is whether or not the intoxicating liquors in question were (in the first two cases) in contemplation of law sold, or furnished, by the respondent in the Count}^ of Rutland and State of Vermont ; or (in the last two cases) held and kept for the purpose of sale, furnishing, or distribution contrary to the statute, within said county and State. The answer depends upon whether tlie National Express Company, by which some of said liquors were delivered to the consignees thereof, and in whose possession the remainder were found and seized before delivery, was in law the agent of the vendors or of the vendees. If the purchase and sale of the liquors was full}' completed in the State of New York, so that upon delivery of them to the express company for transportation the title vested in the consignees, as in the case of a completed and unconditional sale, then no ofl^ence against the 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 liquors to the consignees upon the doing of some act, or the fulfilling of some condition precedent after the}' had reached Rutland, then the rulings of the County Court upon the question of the offence were correct. The liquors were ordered by residents of Vermont from dealers doing business in the State of New York, who selected from their stock such quantities and kinds of goods as they thought proper in compliance with the terms of the orders, put them up in packages, directed them to the consignees, and delivered them to the express company as a com- mon carrier of goods for transportation, accompanied with a bill, or invoice, for collection. The shipment was in each instance, which it is necessary here to consider, " C. O. D." ; and the cases show that the effect of the transaction was a direction b}' the shipper to the express company not to deliver the goods to the consignees except upon pay- SECT. VII.] STATE V. O'NEIL. 319 ment of the amount specified in the C. 0. 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 b\' Morton, J., in Mason v. Thompson, 18 Pick. 305 : " The owner must intend to part with his property, and the pur- chaser 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 par- ties are regarded as evidence by which the court or jury may ascertain and determine their intent. Benj. Sales, ss. 311, 319, note (c). When there is a condition precedent attached to the contract, the title in the property does not pass to the vendee until performance or waiver of tlie \ condition, even though there be an actual delivery of possession. Benj. Sales, s. 320, note {d). The Vermont cases to the above points are referred to in Roberts's Digest, 610 et seq., and need not be spe- cially reviewed here. In the cases under consideration the vendors of the liquors shipped them in accordance with the terms of the orders received, and the mode of shipment was as above stated. The}' delivered tlie packages of liquors, properly addressed to the several persons ordering tlic same, to the express company, to be transported by that company and delivered by it to the consignees upon fulfilment by them of a specified condition precedent ; namely, payment of the purchase-price and transportation charges, and not otherwise. Attached to the very body of the contract, and to tiie act of delivery to the carrier, was the condition of payment before delivery of possession to the consignee. With this condition unfulfilled and not waived, it would be impossible to say that a delivery to the carrier was intended by the consignor as a delivery to the con- signee, or as a surrender of the legal title. Tlie goods were intrusted to the carrier to transport to the place of destination named, there to present them for acceptance to the consignee, and if he accepted them and paid the accompanying invoice and the transportation charges, to deliver tliem to him ; otherwise, to notify the consignor and hold them subject to his order. It is difficult to see how a seller could more posi- tively and unequivocally express his intention not to rclin(iuish his right of property or possession in goods until payment of tlie purchase- price than by this method of shipment. We do not tliink the case is distinguishable in principle from that of a vendor who sends his <'lerk or agent to deliver the goods, or forwards them to, or makes them deliverable upon the order of, his agent, witli instructions not to deliver them except on payment of the price, or performance of some other 320 STATE V. O'NEIL. [CHAP. II. specified condition precedent b}- the vendee. The vendors made the express company their agent in the matter of the deUver}' of the goods, with instructions not to part with the possession of them except upon prior or contemporaneous receipt of the price. The contract of sale therefore remained inchoate or executor}' while the goods were in tran- sit, or in the hands of the express company', and could only become executed and complete by their delivery to the consignee. There was a completed executory contract of sale in New York ; but the completed sale was, or was to be, in this State. The authorities upon the above points and principles are so numer- ous, and are so fully collated in the brief of the learned counsel for the State, and in the text and notes of 2 Benj. Sales (4th Am. ed.), that we I'efrain from specific references in support of the conclusions at which we have arrived. These are fully supported by the decision of the U. S. District Court in Illinois in People v. Shriver, 31 Alb. L. J. 163, a case involving precisely the same question. Treat, J., says in the opinion : " In the case of liquor shipped bj- the defendant to Fairfield b}- 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 companj', as the agent of the seller, until the consignee comes and pays the monej', and then the company, as the agent of the seller, delivers the liquor to the purcliaser. In such case the possession of the express company is the possession of the seller, and generally the right of property remains- in the seller until the payment of the price. An order from a person in Fairfield to the defendant at Shawneetown for two gallons of liquor, to be shipped to Fairfield, C. O. D., a mere offer bj- 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 I'airfield, and a shipment b}- 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 diiferent if the order from Fairfield to the defendant was a simple order to ship two gallons of liquor b}^ express to the person ordering, whether such order was accompanied by the mone}' or not. The moment the liquor under such an order was delivered to the express compan}' at Shawnee- town it would become the property of the person ordering, and the possession of the express compan}' at Shawneetown would be the pos- session of the purchaser — the sale would be a sale at Shawneetown — and if it were lost or destroj'ed in transit the loss would fall upon the purchaser. But in the case at bar the shipping of the liquor to Fair- field, C. O. D., the defendant made no sale at Shawneetown ; the right of property- remained 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 himself. He simply acted upon the request of the purchaser, and sent the liquor to SECT. Vir.] COMMONWEALTH V. FLEMING. 321 Fairfield by his own agent, and there effected a sale by receiving the money and delivering the liquor." ^ COMMONWEALTH v. FLEMING. Pennsylvania Supreme Court, October 15-November 4, 1889. [Reported in 130 Pennsijlvama, 138.] Mr. Justice Green. In the case now under consideration, the liquor was sold upon orders sent hy mail by the purchasers, living in Mercer County, to the defendant, who is a wholesale liquor-dealer in Allegheny County. The goods were set apart at the defendant's place of business in Allegheny County, and were there delivered to a common carrier, consigned to the purchaser at his address in Mercer Count}', and by the carrier transported to Mercer Count}', and there delivered to the purchaser, who paid the expense of transportation. Upon these facts alone, the decision of this court in the case of Garbracht v. Com- raonwealtb, 96 Pa. 449, is directly and distinctly applicable, and requires us to reverse the judgment of the court below, unless there are other facts in the case which distinguish it from that of Garbracht. It is claimed, and it was so held by the court below, that, because the goods were marked C. O. D., the sale was not complete until the delivery was made, and, as that took place in Mercer County, where the defendant's license was inoperative, he was without license as to such sales, and became subject to the penalty of the criminal law. The argument by which this conclusion was reached was simply that the payment of the price was a condition precedent to the delivery, and hence there was no delivery until payment, and no title passed until delivery. Tlie legal and criminal inference was, that the sale was made in Mercer, and not in Allegheny. This reasoning ignores cer- tain facts which require consideration. The orders were sent by the purchasers, in Mercer, by mail to the seller, in Allegheny, and in the orders the purchasers requested the defendant to send the goods C. O. D. Tiie well-known meaning of such an order is that the price of the goods is to be collected by the carrier at tlie time of delivery. The purchaser, for his own convenience, requests the seller to send him the goods, with authority in the carrier to receive the money for them. This method of payment is the choice of the purchaser, under such an order ; and it is beyond question tliat, so far as the purchaser is con- 1 A portion of the opinion is omitted. This case was carried by writ of error to the Supreme Court of the United States. The majority of the court, hoklinj^ tliat no Fed- eral question was involved, dismissed the writ. In a dissenting opinion, Mr. .Justice Hari.an intimates, obiter, his assent to the conclusion of the Vermont court tliat title to the liquor did not pass until it was received and paid for. O'Neil v. Vermont, 144 U. S.323. 322 COMMONWEALTH V. FLEMING. [CHAP. IL cerned, the carrier is bis agent for the receipt and transmission of the mone}'. If the seller accedes to such a request by the purchaser, he eertaini}' authorizes tlie purchaser to pay the money to the carrier, and the purchaser is relieved of all liability to the seller for the price of the goods if he pa3-s the price to the carrier. The liability for the price is transferred from the buyer to the carrier ; and, whether the carrier receives the price or not, at the time of delivery, he is liable to the seller for the price if he does deliver. Substantially, therefore, if the deliver}^ is made bj' the carrier, and he chooses to give credit to the purchaser for the payment of the price, the transaction is complete, so far as the seller is concerned, and the purchaser ma}' hold the goods. Of course, if the seller were himself delivering the goods in parcels upon condition that on delivery of the last parcel the price of the whole should be paid, it would be a fraud on the seller if the pur- chaser, after getting all the parcels, should refuse to perform the con- dition upon which he obtained them, and in such circumstances the seller would be entitled to recover the goods. This was the case of Henderson v. Lauck, 21 Pa. 359. The court below, in that case, expressly charged that if the seller relied on the promise of the pur- chaser to paj^, and delivered the goods absolutel}', the right to the property was changed, although the conditions were never performed; but if he relied, not on the promise, but on actual payment at the deliver}' of the last load, he might reclaim the goods if the money was not paid. The case at bar is entirely different. So far as the seller is concerned, he is satisfied to take the responsibilit}' of the carrier for the price, in place of that of the buyer. He authorizes the purchaser absolutely to pay the price to the carrier; and, if he does so, un- doubtedly the purchaser is relieved of all responsibility for the price, whether the carrier ever pays it to the seller or not. But the carrier is also authorized to deliver the goods. If he does so, and receives the price, he is of course liable for it to the seller. But he is equally liable for the price if he chooses to deliver the goods without receiving the price. It cannot be questioned that the purchaser would be liable also ; but, as he had received the goods from one who was authorized to deliver them, his right to hold tliem even as against the seller is un- doubted. In other words, the direction embodied in the letters C. O. D., placed upon a package committed to a carrier, is an order to the carrier to collect the money for the package at the time of its delivery. It is a part of the undertaking of the carrier with the consignor, a vio- lation of which imposes upon the carrier the obligation to pay the price of the article delivered, to the consignor. We have been referred to no authority, and have been unable to discover an}', for the proposition that in such a case, after actual, absolute delivery to the purchaser by the carrier, without payment of the price, the seller could reclaim the goods from the purchaser as upon violation of a condition precedent. If, now, we pause to consider the actual contract relation between the seller and purchaser, where the purchaser orders the goods to be SECT. VII.] COMMONWEALTH V. FLEMING. 323 sent to bim C. 0. D., the matter becomes still more clear. Upon such an order, if it is accepted by the seller, it becomes the duty of the seller to deliver the goods to the carrier, with instruction to the carrier to collect the price at the time of delivery to the purchaser. In such a case it is the duty of the purchaser to receive the goods from the carrier, and, at the time of receiving them, to pay the price to the carrier. TLiis is the whole of the contract, so far as the seller and the purchaser are concerned. It is at once apparent that when the seller has delivered the goods to the carrier, with the instruction to collect the price on delivery to the purchaser, he has performed his / whole duty under the conti'act ; he has nothing more to do. If the purchaser fail to perform his part of the contract, the seller's right of action is complete ; and he may recover the price of the goods from the purchaser, whether the purchaser takes, or refuses to take, the goods from the carrier. Hence it follows that the passage of the title to the purchaser is not essential to the legal completeness of the con- tract of sale. It is, in fact, no more than the ordinary case of a con- tract of sale, wherein the seller tenders delivery at the time and place of delivery agreed upon, but the purchaser refuses performance. In such case it is perfectly familiar law that the purchaser is legally liable to pay the price of the goods, although, in point of fact, he has never had them. The order to pay on delivery is merely a superadded term of the contract ; but it is a term to be performed by the purchase. , and has no other effect upon the contract than any other term affecting the factum of delivery. It must be performed, but performed by the purchaser, just as the obligation to receive the goods at a particular time or a particular place. Its non-performance is a breach by the purchaser, and not by the seller, and therefore cannot affect the right of the seller to regard the contract of sale as complete, and completely performed on his part, without any regard to the question whether the title to the goods has passed to the purchaser as upon an actual recep- tion of the goods by him. If this be so, the case of the commonwealth falls to the ground, even upon the most critical consideration of the contract between the parties, regarded as a contract for civil purposes only. The duties which lie intermediate between those of the seller and those of the purchaser are those only which pertain to, and are to be performed by, the carrier. These, as we have before seen, are the ordinary duties of carriage and delivery, with the additional duty ol receiving the price from the purchaser, and transmitting it to the seller. The only decided case to which we have been referred w:,iifh presents the effect of an order C. O. D. to a carrier, is Higgins v. Murray, 73 N. Y. 252.i There the defendant employed the phr.ntif! 1 Many authorities on the question whether shipment of goods C. 0. D. will prevent title from passing on deliver}- to the carrier, are collected and discussed in an essay by Professo Gregory in 4 Col. L. Kev. 541. 324 COMMONWEALTH V. FLEMING. [CHAP. II. to inamifacturc for him a set of circus tents. When they were finished, the phiintiff shipped them to the defendant C. O. D., and the}' were destroyed b}- fire on the route. It was held that the defendant, who was the purchaser, should bear the loss ; that the plaintitf had a lien on the tents for the value of his labor and materials, and his retaining his lien b}' shipping them C. O. D. was not inconsistent with, and did not affect his right to enforce the defendant's liability. 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. . . . Re- taining the lien was not inconsistent with his right to enforce the lia- bility for which this action was brought. That liabilit}' was complete when the request to ship was made by the defendant, and was not affected b}- 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 him 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 securit}' for the debt, and yet the defendant was liable for the debt in a proper personal action." It seems to us this reasoning is pcrfectl}' sound. Practieall}', it was ruled that the effect of the order C. O. D. was simply the reten- tion of the seller's lien, and that such retention of hen is not inconsis- tent with a right of recover}' for the price of the article, though, in point of fact, it is not delivered to the purchaser. In other words, the literal state of the title is not decisive of the question of liabilit}' 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 pro- pounds the very question suggested heretofore, of a refusal by the pur- chaser 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 § 389, the writer thus states the posi- tion and duty of the carrier : " The carrier who accepts the goods with such instructions [C. O. D.] undertakes that they shall not be delivered unless the condition of payment be complied with, and becomes the agent of the shipper of the goods to receive such payment. He there- fore undertakes, in addition to his duties as carrier, to collect for the consignor the price of his goods." And again, in § 390: "When the goods are so received, the carrier is held to a strict compliance with such instructions ; and, if the goods are 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 be- SECT. YII.] LANE V. CHAD WICK. 325 comes 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 in such case no title passes to the purchaser. We feel well assured none such can be found. But, if this be so, the whole theory tluit the title does not pass if the money is not paid falls, and the true legal status of the parties results, that tlie 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 b}' 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 right 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. Judgment reversed and defendant dischargd} SARAH S. LANE v. CHARLES F. CHADWICK. Supreme Judicial Court of Massachusetts, November 28, 1887 -January 9, 1888. [Repor-ted in 146 Massachusetts, 68.] Replevin of certain goods. Trial in the Superior Court, without a jury, before Hammond, J., who allowed a bill of exceptions in substance as follows : — The plaintiff ordered the goods from wholesale druggists in Boston to be shipped to her by express C. O. I). The goods were so shipped, nailed up in two boxes, and accompanied by an itemized bill. The defendant, an express messenger, took the goods to the plaintiff's 1 A portion of tlie opinion is omitted. Mr. Justice Williams delivered a dissenting opinion, in which, referring to Iliggins r. Murray, 73 N. Y. 253, he said : " This case is not autliority, therefore, for tlie doctrine advanced hy the defendant in error, but turned upon another question, viz., the right of a manufacturer to payment when ho has completed the article contracted for hy his customer. Tlie rule on that subject is well stated in Ballentine i'. Robinson, 46 I'a. 177: 'When the manufacturer of an article ordered has completed it, and, upon notice of its completion, the buyer refuses or neglects to pay for it and take it, the maker may sue for its value, and tiic measure of damages is the contract price.' The manuf.acturer does not lose his right to sue upon his contract because, at the request of his customer, he sends the goods by a carrier with instructions to collect the price ; but, if his contract had been to make and deliver at a place named, the title would not pass until delivery at the place named." 326 LANE V. CHADWICK. [CHAP. II. store, and demanded the amount of the bill with express charges on delivery of the boxes. The plaintiff refused to pay until she had had an opportunit}' to examine the contents of the boxes, and to com- pare the contents with the bill. The defendant refused to permit such an examination, and took the boxes awa.y. There was evidence tend- ing to show that the defendant told the plaintiff, when he brought the boxes, that if the boxes did not contain the goods ordered by the plain- tiff he would not refund the C. O. D. charges after payment to him. Subsequently the plaintiff procured this writ and went to the defend- ant with the officer, and in his presence tendered to the defendant the amount of the bill and express charges ; and, showing the bill of items, demanded that those specific goods be delivered to her. The defend- ant replied that he knew nothing about those particular goods, and could not be responsible for the contents of the boxes, but said he was ready to deliver the boxes. The plaintiff refused to accept the boxes without knowledge of their contents, and the writ was served. The goods named in the itemized bill were all in the boxes. The plaintiff also introduced evidence tending to show that after this last tender she made an absolute tender of the money and demanded the boxes. The plaintiff asked the judge to rule that, under a C. O. D. contract like the one in this case, if the consignee pays the carrier's charges, and tenders the price of the goods, the consignee has a right to have it certain that tlie goods are present before he actually parts with his money, cspeciallj- when told that the mone}' would not be refunded even if the boxes did not contain the goods so ordered C. O. D. The judge refused so to rule, and found for the defendant. The plaintiff alleged exceptions. P. II. Ilutchmson and C. G. 31. Dimham., for the plaintiff. II. M. Knowlton, for the defendant. Morton, C. J. To maintain replevin, the plaintiff must show that, at the time she sued out her writ, she was entitled to the immediate and exclusive possession of the goods replevied. Collins v. Evans, 15 Pick. G3 ; Wade v. Mason, 12 Gray, 335. The goods in suit were delivered to the defendant, who is a common carrier, b}' the consignor in Boston, to be transported to the plaintiff. They were in two boxes securely nailed up, and were accompanied bj' an itemized bill. The defendant was instructed to deliver the goods to the plaintiff upon the payment of the bill by her in cash. The delivery to the carrier was not a delivery to the plaintiff. He was not her agent, but the agent of the consignor. Merchants' National Bank v. Bangs, 102 Mass. 291. Until he delivered the goods to her. no title or right of possession would pass to her, and it is immaterial whether he rightfullv or wrongfully refused to make the delivery. At the time she replevied the goods she had no title or right of possession. .Exceptions overruled. SECT. I.] EARL OF BRISTOL V. WILSMORE. 327 CHAPTER III. EFFECT OF FRAUD AND RELATED MATTERS. SECTION I. Fraud on the Seller. EARL OF BRISTOL v. WILSMORE. In the King's Bench, April 24, 1823. [Reported in 1 Barnewall ij- Cresswell, 514.] Declaration by the plaintiff, as chief steward of the liberty of Bury St. Edmunds, stated that Elizabeth Carver had recovered £-400 and costs against Wra. Miller, by the judgment of the Court of King's Bench, and had sued out a testatum Ji. fa., directed to the sheriff of Suffolk, to levy the amount, who made out his mandate to the plaintiff, as steward of the liberty, to levy that sura ; that the plaintiff, by virtue of the mandate, took 100 sheep, which were then feeding in a field belonging to Miller ; that while the sheep were in the custody of the plaintiff, the defendants wrongfully rescued them ; by means whereof plaintiff was prevented from satisfying the debt and costs, and Elizabeth Carver commenced an action against him to obtain payment, and plaintiff was obliged to expend £100 in compromising that action. There was also a count in trover. Plea, not guilt}'. At the trial, before Abbott, C. J., at the Middlesex sittings after last Trinity Term, it was proved, on the part of the plaintiff, that the sheep were taken in execution b}' an officer of the i)laintiff, under a mandate of the sheriff of Suffolk, as stated in the declaration. In the course of the night after they were seized in execution, and while the}" were in the custod}^ of the officer, in a field belonging to Miller, next adjoining to a meadow belonging to the defendant Wilsmorc, Page made a passage for the sheep into Wilsmore's field. The latter impounded them, and the next morning delivered them to Page, upon his paying the alleged amount of the damage done. This appeared to have been a contrivance between Wilsmorc and Page, in order to ena])le the latter to obtain possession of the sheep. On the part of the defendant it was proved that Miller had obtained the sheep from Page under the following circumstances. The}' were offered to him for sale on Wednesday, the 16th May, 1821, by Lemon, the servant of Page, and INIiller agreed to pay £78 in ready 328 EARL OF BRISTOL V. AVILSMOItE. [CHAr. IIL money Ajr liiom. The bargtiiu being mndc, the sheep were driven by Lemon to the house of Miller, at >i'ayland, about nine miles from Col- chester. Upon their arrival there, Miller prevailed upon Lemon to accept a check for £78 upon Miles & Co., bankers at Colchester, by assuring him that it was as good as money. Miller's account at the bankers' had been overdrawn for some months before this transaction took place. Lemon then left the sheep in Miller's possession. Page, after keeping the check for two days, presented it at the banker's, and payment was refused. On the very day the sheep were obtained from Lemon, Elizabeth Carver, who was sister-in-law to Miller, went with him to the office of an altorne}" at Colchester, who was an entire stranger to them, and gave him instructions to prepare a warrant of attorney, which was done accordingly ; and, upon that, judgment was entered up and execu- tion issued against Miller, under which the sheep in question were taken. Miller absconded, and was not afterwards heard of. Upon these facts it was contended, on the part of the defendant, that no propertj- in the sheep was vested in Miller b}- the sale, he having obtained possession of them by fraud. On the part of the plaintiff it was contended, that the property- did pass, inasmuch as there was no false representation made to induce Page to part with the possession of the sheep ; and the ease of Rex v. Lara, 6 T. R. 5Go, was cited. The Lord Chief Justice, upon the authority' of that case, was of opinion, that the propertj- had passed to Miller; and the plaintiff, accordingly, had a verdict for £78. A rule 7iisi for a new trial having been obtained in last Michaelmaw Term, — Scarlet and Chitty now showed cause. Marryat and 'Walfonl^ contra. Abbott, C. J. Upon further consideration we are all of opinion, that there ought to be a new trial. If Miller contracted for and obtained possession of the sheep in question with a preconceived design of not paying for them, that would be such a fraud as would vitiate the sale, and according to the cases which have been cited, would prevent the property from passing to him. Whether he obtained possession of the goods with such a preconceived design, is a question of fact which ought to l)e left to the jury, and for that purpose the case must go down to a second trial. At the former trial, the cases of Noble v. Adams, 7 Taunt. 59 ; Rex V. Jackson, 3 Camp. 370 ; and Read v. Hutchinson, 3 Camp. 352, were not cited. If the property in the sheep had not passed to Miller, it is clear that the plaintiff was not entitled to the possession of them, against the defendants. For the plaintiff had a right to seize, under the fieri facias^ the property of Miller only. Unless the sheep, therefore, had become the propei-ty of Miller, the plaintiff had no right to take them, and still less to retain possession of them as against the rightful owner. Hule absolute. SECT. I.] THUKSTON ET AL. V. BLANCHARD. 329 WILDER S. THURSTON et al. v. EDWIN A. BLANCHARD. Supreme Judicial Court of Massachusetts, March Term, 1839. [^Reported in 22 Pickering, 18.] Trover, to recover the value of certain goods alleged to have been obtained by the defendant, from the plaintiffs, by means of false and fraudulent pretences. The defendant offered no evidence in his defence, but relied upon the facts, that the note had not been given up or tendered to him by the plaintiffs, and that no demand had been made upon him for a re- turn of the goods. The plaintiffs produced the note in court and offered to give it up. A verdict was taken for the plaintiffs, by consent. If the Court should be of opinion, that the action could be main- tained, judgment was to be rendered on the verdict ; otherwise, the plaintiffs were to be nonsuited.-^ Shaw, C. J., delivered the opinion of the Court. We are now to take it as proved in point of fact, to the satisfaction of the jury, that the goods, for which this action of trover is^ brought, were obtained from the plaintiffs by a sale, but that this sale was influenced and effected by the false and fraudulent representations of the defendant. Such being the case, we think the plaintiffs were entitled to maintain their action without a previous demand. Such demand, and a refusal to deliver, are evidence of conversion when the possession of the de- fendant is not tortious ; but when the goods have been tortiously ob- tained, the fact is sufficient evidence of conversion. Such a sale, obtained under false and fraudulent representations, may be avoided by the vendor, and he may insist that no title passed to the vendee, or any person taking under him, other than a bona fide purchaser for value and without notice, and in such case the seller may maintain replevin or trover for his goods. Buffinton v. Gerrish, 15 Mass. R. 156. The only important question is, whether the plaintiffs had done enough to rescind the contract and reclaim their goods in this action, Avithout first tendering back the note of the defendant, which they had received on the sale. We are to take it as proved, that this was a negotiable note ; that it had not been negotiated, either at the time the action was brought, or at the trial, or at any time ; on the con- trary, that it had always remained with the plaintiffs unindorsed, and was produced at the trial and offered to be surrendered, and placed on the files of the court for the defendant's use. 1 The statement of facts is abbreviated. 330 THURSTON ET AL. V. BLANCH AED, [CHAP. III. The rule undoubtedly is, that if the vendor under such circum- stances would rescind the contract, and take back his property, if he has received a valuable consideration, he must restore it, whether it be money or goods, or the negotiable security of a third person. Kimball v. Cunningham, 4 Mass. E.. 502. The precise question then is this, whether the vendee's own note not negotiated, comes within the rule. Had it not been negotiable, we think it quite clear, that there would be no necessity of returning it. Eescinding the contract for the sale, rescinds the contract of pay- ment by the vendee. A note not negotiable would have been nothing more than an express promise to pay for the goods, and would have been avoided with the sale. The Court are of opinion, that a note, though payable to order, whilst it remains in the hands of the pro- misee, the vendor of the goods, is to be put on the same footing, and that the delivering it up was not a condition precedent to bringing the action. If not produced at the trial, to be surrendered, it might be presumed that it had been negotiated, and that would have been a bar to the action, upon the rule stated. It is somewhat analogous to a class of cases, which, though they do not arise here on account of our rule, treating a negotiable note given for goods sold as payment, yet are common in England and New York, where a different rule prevails. When a note is given on a sale of goods, but is not paid at maturity, the action is brought for goods sold, and the note is produced at the trial, to be surrendered, and to show that it is not outstanding. If not thus produced, the presumption would be, that it had been negotiated and was outstand- ing ; and if it was so, the vendor could not recover as for goods sold. The negotiable security, actually negotiated and outstanding, would be deemed payment. But if not outstanding, such negotiable security would be deemed as only a collateral promise for the payment of the goods, and need not be tendered before bringing the action for goods sold and delivered. Judgment on the verdict for the plaintiffs?' 1 See Mechem on Sales, § 914, et seq. SECT. I.] CUNDY V. LINDSAY. 331 JAMES CUNDY and T. BEVINGTON, Appellants, v. THOMAS LINDSAY, AND Others, Respondents. In the House of Lords, March 1-4, 1878. [Reported in 3 Appeal Cases, 459.] Appeal from a decision of the Court of Appeal, which had reversed a previous decision of the Queen's Bench. In 1873, one Alfred Blenkarn hired a room at a corner house in "Wood Street, Cheapside ; it had two side windows opening into Wood Street, but though the entrance was from Little Love Lane it was by him con- stantly described as 37 Wood Street, Cheapside. His agreement for this room was signed "Alfred Blenkarn." The now respondents, Messrs. Lindsa}' & Co., were linen manufacturers, carrying on business at Bel- fast. In the latter part of 1873, Blenkarn wrote to the plaintiffs on the subject of a purchase from them of goods of their manufacture, — chiefly cambric handkerchiefs. His letters were written as from "37 Wood Street, Cheapside," where he pretended to have a warehouse, but in fact occupied only a room on the top floor, and that room, though look- ing into Wood Street on one side, could onl}- be reached from the en- trance in 5 Little Love Lane. The name signed to these letters was always signed without au}' initial as representing a Christian name, and was, besides, so written as to appear "Blenkiron & Co." There was a highly respectable firm of W. Blenkiron & Son, carrying on business in Wood Street, — but at number 123 Wood Street, and not at 37. Messrs. Lindsay, who knew the respectability of Blenkiron & Son, though not the number of the house where they carried on business, answered the letters, and sent the goods addressed to " Messrs. Blen- kiron & Co., 37 Wood Street, Cheapside," where the}- were taken in at once. The invoices sent with the goods were always addressed in the same way. Blenkarn sold the goods, thus fraudulently obtained from Messrs. Lindsa}', to different persons, and among the rest he sold 2.00 dozen of cambric handkerchiefs to the IVIessrs. Cundy, who were bona fide purchasers, and who resold them in the ordinaiy way of their trade. Payment not being made, an action was commenced in the Mayor's Court of London by Messrs. Lindsay, the junior partner of which firm, ]\[r. Thompson, made the ordinary affidavit of debt, as against Alfred Blenkarn, and therein named Alfred Blenkarn as the debtor. Blcnkani's fraud was soon discovered, and he was prosecuted at the Central Criminal Court, and convicted and sentenced. Messrs. Lindsay then brought an action against Messrs. Cundy as for unlawful conversion of the handkerchiefs. The cause was tried before Mr. Jus- tice Blackburn, who left it to the jury to consider whether Alfred Blen- karn, with a fraudulent intent to induce the plaintiffs to give him the credit belonging to the good character of Blenkiron & Son, wrote the letters, and by fraud induced the plaintiffs to send the goods to 37 332 CUNDY V. LINDSAY. [CHAP. III. Wood Street, — were tbey the same goods as those bought b}- the de- femhuits, — and did the plaintiffs by the affidavit of debt intend, as a matter of fact, to adopt Alfred Blenkarn as their debtor. The first and second questions were answered in the affirmative, and the third m the negative. A verdict was taken for the defendants, with leave reserved to move to enter the verdict for the plaintiffs. On motion accordingly, the court, after argument, ordered the rule for entering judgment for the plaintiffs to be discharged, and directed judgment to be entered for the defendants. 1 Q. B. D. 348. On appeal, this decision was reversed and judgment ordered to be entered for the plaintiffs, Messrs. Lindsaj'. 2 Q. B. D. 96. This appeal was then brought. The Solicitor General (Sir H. S. Giffard) and Mr. Benjamin, Q. C. {3h\ B. Francis Williams was with them), for the appellants. Mr. Wills, Q. C, and Mr. Fullarton, for the respondents. The Lord Chancellor (Lord Cairxs). My Lords, you have in this case to discharge a duty which is always a disagreeable one for any court, namel}', to determine as between two parties, both of whom are perfectly innocent, upon which of the two the consequences of a fraud practised upon both of them must fall. Mv Lords, in discharging that dutj' your Lordsliips can do no more than apply, rigorousl}', the settled and well-known rules of law. Now, with regard to the title to personal property, the settled and well-known rules of law ma}', I take it, be thus expressed : by the law of our country the purchaser of a chattel takes the chattel, as a general rule, subject to what ma}' turn out to be certain infirmities in the title. If he purchases the chattel in market overt, he obtains a title which is good against all the world ; but if he does not purchase the chattel in market overt, and if it turns out that the chattel has been found by the person who professed to sell it, the purchaser will not obtain a title good as against the real owner. If it turns out that the chattel has been stolen by the person who has pro- fessed to sell it, the purchaser will not obtain a title. If it turns out that the chattel has come into the hands of the person who professed to sell it, by a de facto contract, that is to say, a contract which has pur- ported to pass the property to him from the owner of the property, there tlie purchaser will obtain a good title, even although afterwards it should appear that there were circumstances connected with that contract, which would enable the original owner of the goods to reduce it, and to set it aside, because these circumstances so enabling the original owner of the goods, or of the chattel, to reduce the contract and to set it aside, will not be allowed to interfere with a title for valuable consideration obtained by some third party during the interval while the contract remained unreduced. My Lords, the question, therefore, in the present case, as your Lord- ships will observe, really becomes the very short and simple one which I am about to state. Was there any contract which, with regard to the goods in question in this case, had passed the property in the goods from the Messrs. Lindsay to Alfred Blenkarn? If there was any con- SECT. I.] CUNDY V. LINDSAY. 333 tract passing that propertj', even although, as I have said, that contract might afterwards be open to a process of reduction, upon the ground of fraud, still, in the mean time, Blenkarn might have conveyed a good title for valuable consideration to the present appellants. Now, my Lords, there are two observations bearing upon the solu- tion of that question which I desire to make. In the first place, if the property- in the goods in question passed, it could only pass b}' wa}' of contract ; there is nothing else which could have passed the propert}'. The second observation is this : your Lordships are not here embar- rassed b}' any conflict of evidence, or any evidence whatever as to con- versations or as to acts done ; the whole history of the whole transaction lies upon paper. The principal parties concerned, the respondents and Blenkarn, never came in contact personally, — everything that was done was done b\' writing. What has to be judged of, and what the jury in the present case had to judge of, was merely the conclusion to be de- rived from that w'riting, as applied to the admitted facts of the case. Now, m}' Lords, discharging that duty and answering that inquiry', what the jurors have found is in substance this : it is not necessary to spell out the words, because the substance of it is bcAond all doubt. They have found that by the form of the signatures to the letters which were written bj' Blenkarn, by the mode in which his letters and his ap- plications to the respondents were made out, and bj- the way in which he left uncorrected the mode and form in which, in turn, he was ad- dressed by the respondents ; that by all those means he led, and intended to lead, the respondents to believe, and the}- did believe, that the person with whom the\- were communicating was not Blenkarn, the dishonest and irresponsible man, but was a well known and solvent house of Blenkiron & Son, doing business in the same stx'eet. M}- Lords, .those things are found as matters of fact, and they are placed beyond the range of dispute and controvers}- in the case. If tliat is so, what is the consequence ? It is that Blenkarn — the dishonest man, as I call him — was acting here just in the same way as if he had forged the signature of Blenkiron & Son, the respectable firm, to the applications for goods, and as if, when, in return, the goods were forwarded and letters were sent, accompanying them, he had intercepted the goods and intercepted the letters, and had taken possession of the goods, and of the letters which were addressed to, and intended for, not himself, but the firm of IjJenkiron & Son. Now, my Lords, stating the matter shortl}- in that way, I ask the question. How is it possible to imagine that in that state of things any contract could have arisen between the respondents and Blenkarn, the dishonest man? Of him the}- knew notliing, and of liira they never tliought. "Willi him the}' never intended to deal. Their minds never, even for an instant of time, rested upon him, and as between him and them tliere was no con- sensus of mind which could lead to an}' agreement or any contract whatever. As between him and them there was merely the one side to a contract, where, in order to produce a contract, two sides would be 334 KODLIFF V. DALLINGER. [CHAR III. required. With the firm of Blenkiron & Son of course there was no contract ; for as to them the matter was entirely unknown, and there- fore the i)retence of a contract was a failure. The result, therefore, my Lords, is this, that your Lordships have not here to deal with one of those cases in which there is de facto a contract made which may afterwards be impeached and set aside, on the ground of fraud ; but you have to deal with a case which ranges itself under a completel}- different chapter of law, the case, namel}-, in which the con- tract never comes into existence. My Lords, that being so, it is idle to talk of the propert}' passing. The property remained, as it originally had been, the property of the respondents, and the title which was at- tempted to be given to the appellants was a title which could not be given to them. My Lords, I therefore move your Lordships that this appeal be dis- missed with costs, and the judgment of the Court of Appeal affirmed. '^ ALVIN RODLIFF v. FRANK W, DALLINGER. Supreme Judicial Court of Massachusetts, November 10, 1885 — January 11, 1886. [Reported in 141 Afassa-i-hitsetls, 1.] Replevin of wool. From the bill of exceptions it appeared that the plaintiffs, wool dealers in Boston, delivered the wool to one Clement- son, a wool broker. The plaintiffs testified tlaat they had sold wool to Pomeroy & Sons, of Pittsfield, through Clementson, and that he, on applying for the wool in suit, said that he had an offer from a manufacturer for the wool, whose name he would not disclose, but who was as good as Pomeroy & Sons. Finally the plaintiffs allowed him to take the wool with the un- 1 Lords Hatherlet and Pexzan-ce delivered concurring opinions. Lord Gordon also concurred. In the opinions reliance was placed on Hardman v. Booth, 1 H & C. 803, and Higgons v. Burton, 26 L. J. Ex. 342. Lord Hatherley also said ; " We have been pressed very much with an ingenious mode of putting the case on the part of the counsel, who have argued with eminent ability for the appellants in this case, namely, suppose this fraudulent person liad gone himself to the firm from whom he wished to obtain the goods, and had represented that he was a member of one of the largest firms in London. Suppose, on his making that representation, the goods had been delivered to him. Now I am very far, at all events on the present occasion, from seeing my way to this, that the goods being sold to him as representing that firm, he could be treated in any other way than as an agent of that firm ; or suppose he had said : ' I am as rich as that firm ; I have transactions as large as those of that firm ; I have a large balance at my bankers,' — then the sale would have been a sale to a fraudulent purchaser on fraudulent representations, and a sale which would have been capalile of being set aside, but still a sale would have been made to the person who made those false repre- sentations : and the parting with the goods in that case might possibly — I say uo more — have passed the property." SECT. I.] KODLIFF V. DALLI^'GER 335 derstanding that he was to pay them immediatel}- the sum he received from his principal. The sale was entered b}' the plaintiffs on their books as a sale to Clementson. On receiving the wool Clementson stored it with the defendant, a public warehouseman, and immediately pledged the ware- house receipts with the Massachusetts Loan and Trust Company as securitj' for a loan of S2,000. It was an undisputed fact that Clementson had not any such offer, and did not act for an}' such person as the plaintiffs testified that he represented at the time of obtaining the wool. The judge instructed the jury that there were three possible views of the transaction: (1) that they might find it was an ordinary sale to Clementson ; or (2) that it was not a sale to Clementson, but was a delivery to Clementson as a broker, with a view to his selling it to some customer, whom he expected afterward to negotiate with, and to con- summate a sale with him ; and, if they found this, then there was a special provision of the statute which protects persons dealing in good faith with a broker having property in that way, so far as they make advances or loans upon property in pledge, in good faith, to persons who have custody of property as brokers, with authority to sell or dis- pose of it; or (3) that it was not a sale to Clementson, or a delivery to him as broker with authority to sell, but that it was a delivery to Clementson, upon his representation that he came from a purchaser, representing him, with an offer for it, — a purchaser whose name he did not disclose, — and that tliese goods were delivered to him as the agent of that purchaser, as a sale to that purchaser ; and if this was the fact, that the plaintiffs were entitled to the property, notwithstanding it was subsequently pledged to the Massachusetts Loan and Trust Compan}', Tlie judge further instructed the jury, upon the third view, "that, if this was a transfer upon a false representation made by Clementson, — a representation that he came with an offer from a third person whose name he did not wish to disclose, — and the goods were delivered to Clementson as a sale to him as the agent of this third person whose oflfer he was bearing, with the view that the property should pass at the time to that tliird person and thus constitute a sale to such person, from whom payment was to be made subsequently, and the payment to be brought back by Clementson as the agent of that third person, Clem- entson had no right afterward to deal with that property at all ; that he got it into his possession by fraud, and he got it into his possession without any authority to make any subsequent sale, or to do anything with it; and that it Avas wrongly in his possession from the start, and any person who saw fit to advance money upon it or to buy it, however honestly, and in perfect good faith, would be the loser, and tlie plaintiffs could pursue tlie property and get it wherever they could find it, when- ever the fraud practised upon them should come to their knowledge." ^ 1 The statement of the case has been abbreviated. 336 RODLIFF V. DALLINGER. [CHAP. III. The juiT returned a verdict for the plaintiffs ; and the defendant alleged exceptions. JI. D. IJi/de, for the defendant. A. Jleiuenwai/^ for the plaintiffs. Holmes, J. The plaintiffs' evidence warranted the conclusion that they refused to sell to Clementson, the broker, but delivered the wool to him on tlie understanding that it was sold to an undisclosed manu- facturer in good credit with the plaintiffs. This evidence was not ob- jected to, and was admissible, notwithstanding the fact that the sale was entered on the plaintiffs' books as a sale to Clementson, and that a bill was made to him. Commonwealth v. Jeffries, 7 Allen, 548, 564. It was admitted that Clementson, in fact, was not acting for such an undisclosed principal ; and it follows that, if the plaintiffs' evidence was believed, there was no sale. There could not be one to this supposed principal, because there was no such person, and there was not one to Clementson, because none purported to be made to him, but, on the contraiT, such a sale was expressly refused and excluded. Edmunds V. Merchants' Despatch Transportation Co. 135 Mass. 283. It was suggested that this case differed from the one cited, because there the principal was disclosed, whereas here he was not, and that credit could not be supposed to have been given to an unknown person. We have nothing to say as to the weight which this argument ought to have with a jury, bej'ond observing that the plaintiffs had reason in Clementson's representations forgiving credit to the supposed manufac- turer. But there is no rule of law that makes it impossible to contract with or sell to an unknown but existing party. And if the jury find that such a sale was the only one that purported to be made, the fact that it failed does not turn it into a sale to the party conducting the transaction. Schmaltz v. Avery, 16 Q. B. 655, only decides that a man's describing himself in a charter-party as " agent of the freighter" is not sufficient to preclude him from alleging that he is the freighter. It does not hint that the agent could not be excluded by express terras, or b}' the description of the principal, although insufficient to identify the in- dividual dealt with, as happened here ; still less, that in favor of third persons the agent would be presumed without evidence to be the undis- closed principal, although expressly- excluded. The invalidity of the transaction in the case at bar does not depend upon fraud, but upon the fact that one of the supposed parties is want- ing, it does not matter how. Fraud only becomes important, as such, when a sale or contract is complete in its formal elements, and therefore valid "unless repudiated, but the I'ight is claimed to rescind it. It goes to the motives for making the contract, not to its existence ; as when a vendee expressly or impliedl}' represents that he is solvent and intends to pa}' for goods, when in fact he is insolvent, and has no reasonable expectation of pa3-ing for them ; or, being identified b}' the senses and dealt with as the person so identified, says that he is A, when in fact he is B. But when one of the formal constituents of a legal transaction SECT. I.] RODLIFF V. DALLINGER. 337 is wanting, there is no question of rescission ; the transaction is void ah initio, and fraud does not impart to it, against the will of the defrauded part}', a validity that it would not have if the want were due to innocent mistake. The sale being void, and not merely voidable, or, in simpler words, there having been no sale, the delivery to Clementson gave him no power to convey a good title to a bona fide purchaser. He had not even a defective title, and his mere possession did not enable him to pledge or mortgage. The considerations in favor of protecting bona fide dealers with persons in possession, in cases like the present, were much urged in Thacher v. Moors, 134 Mass. 156, but did not prevail. Much less can they be allowed to prevail against a legal title, without the intervention of statute. Exceptions overruled} 1 Smith Co. V. Stidger, 18 Col. App. 261; Baehr v. Clark, 83 la. 313; Rogers v. Button, 182 Mass. 187; Hamet v. Letcher, 37 Ohio St. 356, ace. lu Stoddard r. Ham, 129 ]Mass. 383, one Leonard, a commission merchant, who sometimes bought goods on his own account, purchased bricks of the plaintiffs. They supposed they were selling the bricks to the defendant through Leonard as his agent, and would not have sold them to Leonard personally. Leonard was not and did not represent that he was the defendant's agent. Immediately thereafter Leonard sold the bricks to the defendant. Leonard, having failed, and the defendant denying his agency, the plaintiffs brought an action for converi^iou after demand and refusal. The trial judge ruled that the plaintiffs could not recover and reported the case. Colt, J., saiti in part: "It is not enough to give the plaintiffs a right to recover, that they suppo.sed thev were selling bricks to tlie defendant, through Leonard his agent, and that they would not have sold them to Leonard on his sole credit. The judge found that the}' were in fact .sold to Leonard. There was no fraud, no false representation of agency, or pretence on the part of Leonard that he was buying for any one else. He was a commission merchant, who was in the habit of purchasing goods on his own account, and who honestly bought the bricks for himself, and sold them to the defendant as his own. It was not a ca.se of mistaken identity. The plaintiffs knew that they were deal- ing with Leonard ; they did not mistake him for the defendant ; nothing was said as to any other party to the sale. The conclusion is unavoidable that the contract was with him. The difficulty is, that the plaintiffs, if they had any other intention, neglected then to disclose it. " It was a mistake on one side, of which the other had no knowl- edge or suspicion, and which consisted solely in the unauthorized assumption that Leonard was acting as agent for a third person, and not for himself. " It is elementary in the law governing contracts of sale and all other contracts, that the agreement is to be ascertained exclusively from the conduct of the parties and the language used when it is made, as applied to the subject matter and to known usages. The a.ssent must be mutun], and the union of minds is ascertained by some medium of communication. A proposal is made by one party and is acceded to by the other in some kind of language mutually intelligible, and this is mutual assent. Met. Con 14. A ])arty caiinot escape tlie natural and reasonable interpretation wiiicli must be put on what he says and doe.s, by showing that his words were used and his acts done with a different and undisclosed intention. Fo.ster v. Kopes, 111 Mass. 10, 16. Daley v. Car- ney, 117 .Mass. 288. Wright y. Willis, 2 Allen, 191. 2 Chit. Con. (11 th Am. ed.) 1022. It is n. R. post 3, vol. G20, n., and another, sherifl" of Middlesex ; there personal property, consisting (inter alia) of some cows, was settled on the mar- riage of the plaintiffs wife on certain trusts ; and the court held that only those which were purchased after the marriage could be taken to satisfy the debts of the husband. The second question then is, Whether 382 MARTINDALE V. BOOTH. [CHAP. III. the defendant's having taken possession of these goods after Mercer's death, though under the bill of sale, will make hiin an executor de son tort/ The two cases, which were cited by the plaintiff's counsel, are decisive of this point. In Bac. Abr. (2 Bac. Abr. 605) it is said "if a man make a deed of gift of his goods in his life-time by covin to oust his creditors of their debts, yet after his death the vendee shall be charged for them." There, too, the possession was delivered to the vendee. To support this doctrine, 13 II. 4, 4 b. llol. Abr. 549 are both quoted. Then in what manner shall he be charged? He can only be charged as executor ; because any intermeddling with the intestate's effects makes him so. The cases in Cro. Jac. and Yelv. cited at the bar prove it, and state the manner in which he shall be charged. There is also another strong case on this point in Dyer (Dy. 166, b). In short, every intermeddling after the death of the party makes the person so intermeddling an executor de son tort. Grose, J., observed that it was unnecessary to repeat what had been said from the bench ; but said that he was perfectly satisfied that the law was as had been stated, Postea to the plaintiff . MARTINDALE v. BOOTH. In the King's Bench, May 4, 1832. [Reported in 3 Barnewall ^^ AJolphus, 498.] Trespass for taking away and converting furniture, goods, and chattels of the plaintiffs. Plea, not guilty. At the trial, before Lord Tenterden, C J., at the Middlesex sittings after Trinit}- Terra, 1829, the jury found a verdict for the plaintiffs for £93 16s., subject to the opinion of this court on the folloM'ing case : — Before the 8th of May, 1828, one W. G. Priest, who kept the Peacock Tavern in Maiden Lane, Middlesex, was indebted to the plaintiffs, wine and spirit merchants, in £10 for wine and spirits. Priest having ap- plied to them for a further suppl}- of wine upon credit, and for a loan of money, the plaintiffs refused to give him any further credit, or to lend him any money unless he would give them satisfactory security. Priest then proposed to execute a bill of sale to them of the furniture and fixtures in the Peacock Tavern as such security, and the plaintiffs agreed to give him credit thereupon to the extent of £200. After Priest and the plaintiffs had agreed to give and accept such security, but before the bill of sale was actually executed, the plaintiffs, upon the faith of such agreement, advanced to Priest £30 in money, and to the amount of £60 in wine and spirits, and in two da3's afterwards, viz., the 8th of Ma}', 1828, in pursuance of the agreement. Priest exe- cuted and delivered to the plaintiffs a bill of sale, reciting that he. Priest, was indebted to the plaintiffs iu the sum of £100, for money SECT. II.] MAKTINDALE V. BOOTH. 383 advanced and goods sold and delivered, and stating that, in considera- tion thereof, he granted, bargained, sold, and assigned unto the plain- tiffs all the household goods, furniture, &c., in and about the premises called the Peacock Tavern, to hold to the proper use and behoof of the plaintiffs forever, subject to the condition thereinafter contained : pro- viso, that if Priest should pay the said sum of £100, with lawful interest thereon b^' instalments, that is to say, £25 on the 7th of June then next, £25 on the 7th of May next, and X50, the residue thereof, on the 7th of November, 1829, the deed should be void ; but in default of payment of all or an}- of the said sums at the times appointed, then it should be lawful, althougli no advantage should have been taken of any previous default, for the plaintiffs forthwith to enter upon the premises, and take possession of the goods, furniture, &c., and absolutely sell and dispose of the same. There was a power reserved to the plaintiffs, during the continuance of the deed, to enter upon the premises and take an inventory ; and also at any time after default as aforesaid to take and retain possession of the goods until they should deem it expe- dient to sell. Then followed a proviso, "that until default should be made in payment of all or any of the said sums, it should be lawful for Priest to retain and keep quiet possession of all and singular the said household goods," &c. Before Priest commenced dealing with the plaintiffs, he had married the widow of one Higman, who formerly kept the Peacock Tavern, and who, at the time of his death, was indebted to Combe, Delafield, and Co., in the sum of £1,100. His widow being executrix of his will, on her marriage with Priest they both became possessed of Iligman's effects ; and Priest, by way of security for the said £1,100, executed a warrant of attorney to Combe, Delafield, and Co., for that amount in November, 1823. On the 1st of November, 1828, Messrs. Combe, Delafield, and Co. caused judgment to be entered up on the warrant of attorney, and sued out a writ of Ji. fa. directed to the defendants Booth and Copeland, then sheriff of Middlesex, who thereupon issued their warrant to Wilson, the other defendant, their offlcer, and he seized and took in execution the goods in question, being the furniture and eflTects in the Peacock Tavern. While the sheriff remained in posses- sion, the plaintiffs came upon the premises, gave the defendants notice of the bill of sale, and required them to relinquish possession, which was refused, and the sheriff sold the goods. This case was now argued by Archbold, for the plaintiffs. Comyn, contra. LiTTL EDALE, J. Thc cascs show that continuance in possession of goods and chattels by a vendor after the execution of a bill of sale is a badge and evidence of fraud ; but I think that, under the circum- stances of this case, a jury would have negatived fraud. In Jczeph u. Ingram, 1 P,. Moore, 189, Dallas, J., denies that Edwards ?;. Ilarben, 2 T. R. 587, lays down a general rule, that in transferring chattels the 384 MAETINDALE V. BOOTH. [CIIAP III. possession must accompany and follow the deed. There was in Jczeph V. Ingram a mixed possession ; for the vendee superintended the man- agement of the farm, and was occasional!}' present. That case, however, shows the opinion of tlie Court of Common Pleas to have been, that a change of possession is not in all instances necessary. Parkk, J. I am of the same opinion. I think that the want of deliver}- of possession does not make a deed of sale of chattels absolutely void. The dictum of BuUer, J., in Edwards v. Harben, 2 T. R. 587, has not been generally considered, in subsequent cases, to have that import. The want of delivery is only evidence that the transfer was colorable. In Benton v. Thornhill, 2 Marshall, 427, it was said in argument, that want of possession was not only evidence of fraud, but constituted it ; but Gibbs, C. J., dissented ; and although the vendor there, after executing a bill of sale, was allowed to remain in possession, Gibbs, C. J., at the trial, left it to the jury to say, whether, under all the circumstances, the bill of sale were fraudulent or not. It is laid down in Sheppard's Touchstone, 224 (7th ed.), " that a bargain and sale may be made of goods and chattels without any deliv- ery of any part of the things sold ; " and, afterwards, in page 227, it is said " that the word ' gift' is often applied to movable things, as trees, cattle, household stuff, &c., the property whereof may be altered as well by gift and delivery as by sale and grant, and this is, or may be, either by word or writing ; " and in a note to this passage by the editor it is said, "that, by the civil law, a gift of goods is not good without delivery, yet in our law it is otherwise, wlien there is a deed : also in a donatio mortis causa,, there must be a delivery." Then it is evident that the bill of sale, in this case, without delivery, conveyed the property in the household goods and chattels to the plaintiffs. It may be a question for a jury, whether, under the circumstances, a bill of sale of goods and chattels be fraudulent or not ; and if there were any grounds for thinking that a jury would find fraud here, we might, this being a special case, infer it ; but there is no ground whatever for saying that this bill of sale was fraudulent. It was given for a good consideration, for money advanced to Priest to enable him to carry on his trade, and his continuance in possession was in terms provided for. Judgment for the plaintiffs.^ 1 Tenterdejt, C. J., and Patteson, J., delivered concurriug opinions. Note. — It is well settled in England that retention of possession by the seller is at most evidence tending to show fraud. See Lindon v. Sharp, G JI. & G. 898; Pennellr. Dawson, 18 C. B. 355; Hale v. Metropolitan, &c. Co., 28 L. J. Ch. N. S. 777, 779; Alton v. Harri- son, L. R. 4 Ch. App. 622; Macdona v. Swine}', 8 Ir. C. L. R. 73. The question has been made of much less importance in England than formerly, how- ever, by the Bills of Sales Acts. Those now in force are 41 & 42 Vict. c. 31; 45 & 46 Vict. c. 43; 53 & 54 Vict. c. 53; 54 & 55 Vict. c. 35. These require that bills of sale, whether given in an absolute sale or as security, shall be registered as a condition of their validity against third persons, if possession is not transferred. But transactions effected by parol are not within the scope of the acts. In this country the prevailing doctrine, in the absence of statutes, is that retention of SECT. II.] MARTINDALE V. BOOTH. 385 possession is prima facie evidence of fraud, but that the bona fides of the transaction may be shown. Crawford v. Neal, 144 U. S. 585; Troj' Fertilizer Co. v. Norman, 107 Ala. 667; Teague v. Bass, 131 Ala. 422; Liebes v. Slefty, 32 Pac. Rep. 261 (Ariz.); Smith v. Jones, 63 Ark. 232; Justh v. Wilson, 19 D. C. 529; Briggs v. Weston, 36 Fla. 629; Collins v. Tag- gart, 57 Ga. 3.55; Ind. Rev. Stat. 1881, § 4911; Seavey v. Walker, 108 lud. 78; Higgins v. Spahr, 145 Ind. 167; Kan. Gen. Stat. (1889), § 3163; Locke v. Hedrick, 24 Kan. 763; Coch- rane V. Gilbert, 41 La. Ann. 735; Goodwin v. Goodwin, 90 Me. 23; Brooks v. Powers, 15 Mass. 44; Allen v. Wheeler, 4 Gray, 123; Mich. Comp. Laws (1897), § 9520; Jansen v. McQueen, 105 Mich. 199; Minn. Gen. Stat. (1894), § 4219; Cortland Wagon Co. v. Sharvj", 52 Minn. 216; Hiliiard v. Cagle, 46 Miss. 309 ; Neb. Comp. Stat. 1881, c. 32, § 11 ; PowellV Yeazel, 46 Neb. 225; Miller v. Pancoast, 5 Dutch. 250; N. Y. Laws of 1897, c. 417, § 25; Menken v. Baker, 40 N. Y. App. Div. 609, affi'd without opinion, 166 N. Y. 628; Schidlower V. McCafferty, 85 N. Y. App. Div. 493; Rea v. Alexander, 5 Ired. 644; Cheatham v. Haw- kins, 80 N. C. 161; N. Dak. Rev. Code, § 5053; Conrad v. Smith, 6 N. Dak. 337; Hombeck V. Vanmetre, 9 Ohio, 153; Freeman v. Rawson, 5 Ohio St. 1; Ore. Code Civ. Proc.§ 766, subd. 40; McCully v. Swackhammer, 6 Ore. 438; Mead v. Gardiner, 13 R. L 257; Pregnall V. Miller, 21 S. C. 385; Grubbs v. Greer, 5 Coldw. 160; Edwards v. Dixon, 66 Tex. 613; Traders Nat. Bank v. Day, 87 Tex. 101; Davis v. Turner, 4 Gratt. 422; Benjamin v. Mad- den, 94 Va. 66; Bindley v. Martin, 28 W. Va. 773; Poling v. Flanagan, 41 W. Va. 191; Wis. Rev. Stat. (1878), § 2310; Densmore Com. Co. v. Shong, 98 Wis. 380. In many jurisdictions, however, it is enacted or judicially decided that retention by the seller of the possession of personal property after a sale is conclusive proof of fraud. Cal. Civ. Code, § 3440; George v. Pierce, 123 Cal. 172; Col. 1 Mills Annot. Stats. § 2127; Stan- ley V. Citizens' Coal Co., 24 Col. 103; Hatstal v. Blakeslee, 41 Conn. .302; Huebler v. Smith, 62 Conn. 186; Del. Code, c. LXIII. § 4; Bowman v. Herring, 4 Harr. 458; Id. Rev. Stat. § 3021 ; Harkness v. Smith, 2 Idaho, 952; Hallett v. Parrish, 51 Pac. Rep. 109 (Id.); Bass v. Pease, 79 III. App. 308; Bauman Loan Co. v. Hatowsky, 107 111. App. 181 ; la. Code, § 1923; Harris v. Pence, 91 la. 481; Morton v. Ragan, 5 Bush, 334 {conf. Vanmeter v. Estill, 78 Ky. 456); Md. Code, Art. 21, § 40; Franklin v. Clatlin, 49 Md. 24; Mo. Rev. Stats. 1889, § 5178; State v. Goetz, 131 Mo. 675; Revercomb v. Duker, 74 Mo. App. 570; Mont. Civ. Code, § 4491; Yank v. Bordeaux, 23 Mont. 205; Nev. Comp. Laws, § 292; Estey v. Cooke, 12 Nev. 276; Tognini r. Kyle, 17 Nev. 209; Coolidge v. Melvin, 42 N. H. 510; Parker v. Marvell, 60 N. H. 30;'Okla. Stats. § 2663; Swartzburg v. Dickerson, 73 Pac. Rep. 283 (Okl.); .Stephens V. Gifford, 137 Pa. 219; Garretson v. Hackenburg, 144 Pa. 107; Lehr v Brodbeck, 192 Pa. 535 {conf. Ditman v. Raule, 124 Pa. 225) ; McCullough v. Willey, 192 Pa. 176; S. Dak. Comp. Laws, § 4657; Howard v. Dwight, 8 S. Dak. 398; Utah Comp. Laws, 1888, § 2837; White v. Pease, 15 Utah, 170; Weeks v. Prescott, 53 Vt. 57; Wheeler V. Selden, 63 Vt. 429; Wash. Gen. Stats. § 1454; Whiting Mfg. Co. v. Gephart, 6 Wa.sh. 615. So- in Ontakio, Rev. Stat. Ont. c. 119, §5; McMaster v. Garland, 31 Up. Can. C. P. 320. The Federal courts apply the law of the State where the transaction took place. Dooley v. Pease, 60 U. S. App. 248. In these states it is immaterial that retention of possession is consistent with the pro- visions of the deed of transfer or bill of sale. See statutes cited above and Egan Bank v. Rice, 119 Fed. Rep. 107 (C. C. A.); Swift W.Thompson, 9 Conn. 63; Coolidge v. Melvin, 42 N. H. 510; Stephens v. Gifford, 1.37 Pa. 219; Post Publishing Co. v. Insurance Co., 189 Pa. 301. Contra, Bass v. Pease, 79 111. App. 308. It is immaterial also that the objecting creditor had knowledge of the sale. Bassingerr. S[iangler, 9 Col. 175, 186; Harkness v. Smith, 2 Idaho, 952; Lawrence v. Burnham, 4 Nev. 361; Warwick Iron Co. v. First Nat. Bank, 13 At. Ko]). 79 (Pa.); Hart v. Farmers' Bank, 33 Vt. 252, 263; IVrrin v. Reed, 35 Vt. 28; see also Weill v. Zacher,92 III. App. 290. Contra, Lowe r. Matson, 140 111. 108; Sacliler Carriage Co. v. Dryden, 71 III. App. 583; Vanmeter V. Estill, 78 Ky. 456. See also Dieckman v. Yung, 87 Mo. App. 530. In the case last cited the creditor gave credit after notice, and this was relied on as the ground of decision. (See also McCullough r. Willey, 192 Pa. 170.) In the other cases this was not the case, but ap- parently the time when the claim arose was not regarded as material. By the statutes of Iowa, Maryland, Washington, and Ontario, if a bill of sale is recorded, the transaction is valid though the vendee retains possession, in analogy to the connnoE provisions in regard to chattel mortgages. 38G COOKSON V. SWIRE. [CHAP. IIL COOKSON V. SWIRE. In the House of Lords, May 23, 1884. [Reported in 9 Appeal Cases, 653.] Appeal from an order of the Court of Appeal. The appellants having on the 25th of January, 1883, recovered judgment against Samuel Vaughan for £734, the sheriff of Lancashire the next day seized under a Ji. fa. certain household furniture at Croydon Villa, Blackpool, where the debtor was residing. A claim having been made by the respondents, an interpleader issue was directed, in which the respondents, as plaintiffs, afiirmed, and the appellants, as defendants, denied that the goods seized were at the time of the seizure the prop- ert}- of the respondents as against the api)ellants. At the trial, before Cave, J., at Manchester, in April, 1883, the following facts were proved : — On the 10th of May, 1873, Samuel Vaughan being in difficulties, the respondents paid his debts, and he executed a bill of sale whereby he assigned to the respondents the goods in question as security for loans amounting to £098 10s., with a proviso that if the grantor did not upon demand pa}' principal and interest the grantees might take possession and sell the goods b}' public auction or private contract upon such conditions and in such manner as the}' should think fit. This bill was duly registered, but was not re-registered at the end of five years or at all. On the 23d of December, 1882, the appellants threatened the debtor with the action which they brought on the 8th of January, 1883. At the end of December, 1882, and after this threat, it was agreed between the debtor's son, Charles Vaughan, and the landlord of Croydon Villa that the son should be the tenant instead of his father the debtor. At this time the debtor was paralyzed and incapable. On the 11th of January, 1883, the respondents served a demand for the money due under the bill of 1873, and put a man in possession, and a few days after the respondent, Samuel Swire (brother-in-law of Samuel Vaughan), on behalf of the respondents, agreed with Charles Vaughan to sell the goods in question to him for £250, and (though no money passed) gave him the following receipt : — £250. Manchester, 19th January, 1883. Received from Mr. Charles Vaughan the sum of two hundred and fifty pounds, being the purchase-money agreed to be paid by him for the whole of the household furniture and effects now being in, about, or upon the messuage or dwelling-house situate and being Croydon Villa, South Shore, Blackpool, in the county of Lancaster. S. SwiRK, For self and co-mortgagees. SECT. II.] COOKSON V. SWIKE. 387 Charles Vaughan, not being able to pay, executed a bill of sa.e dated the 19th of January, 1883, whereby he assigned the goods to the respondents as security for the purchase-money. This bill was duly registered. These proceedings were taken by the respondents to pro- tect the furniture for the benefit of the persons for whom the respondents were trustees. The jury found that the transaction between the respondents and Cliarles Vaughan was a bonajide one and found a verdict for the plain- tiffs, the now respondents, and were then discharged by consent, Cave, J., reserving the case for further consideration, with liberty to him to find any further fact that might be necessary. Upon further consideration, on the 29th of May, 1883, Cave, J,, while adopting and approving the finding of the jury that the transac- tion with Charles Vaughan was a bona fide one, found as a fact that the goods were at the time of the execution in the apparent possession of Samuel Vaughan, and held that the bill of 1873 was under the Bills of Sale Acts, previous to 1882 void as against the execution creditors, it being necessary for the respondents in proving their title to rely on that bill ; and the learned judge entered judgment for the defendants, the now appellants. The Court of Appeal, on the 6th of November, 1883, held that the transaction with Charles being a bona fide one, the bill of 1873 was on the 19th of January, 1883, satisfied, so that the Bills of Sale Acts had no application to it ; but that if those acts were applicable, then as a matter of fact the goods were not at the time of the execution in the apparent possession of the father Samuel, but were in the actual and apparent possession of the son Charles. The court therefore reversed the judgment of Cave, J., and entered judgment for the respondents. Sir F. Herschell, S. G., and Arthur Charles, Q. C, for the appel- lants. Ambrose, Q. C, and C. H. M. Wharton, for the respondents, were not heard. Lord Blackburn. I think that in the judgment of Cave, J., there is only one point (but that is a very important point), on which I am inclined to differ from him. The Court of Appe.il indicate what in my mind is the true ground upon which Cave, J., was wrong ; but they also indicate a good many other things upon which, as the Lord Chancellor has said, if it were necessary to decide upon them I should certainly at least require to hear the otiier side in support of them. I need not say more than that. It all turns in my mind upon the construction of a few words in an act of Parliament, but I will first of all point out what I think is the real object of these acts of Parliament, before coming to the interpretation of the words. At common law a man might take a security upon goods without carrying away the goods or taking possession of them — he might take a sale of them out and out, and he might take the legal property in 388 COOKSON V. SWIRE. [CHAP. III. thorn subject to the power to redeem them (what is commonl}' called a mortgage), without taking possession of them. The law on the subject will be found in Twyne's Case, 3 Rep. 80; 1 Sm. L. C. (8th ed.) 1, and the notes upon Twyne's Case, but this rule got established that when the goods were not taken awa}', but were left in the hands of the man who had had them previouslj-, that which had been thought before to make the transaction void was really no more than evidence to go to the jur}' of fraud ; and if a man came forward suddenl}', when there was an execution, for instance, issued against the person in possession of the goods, and said, at an antecedent time I had a securit}' upon these goods, and I left them in the possession of the debtor all that time, the not having taken possession was evidence that the thing was a sham, — it was not conclusive ; it was not a matter of law, but it was evidence that the thing was a sham. Upon that two evils arose, and ver}- important ones they were. In the first place it often happened that there was really a sham put up to endeavor to defeat a man, and there was a great quantity of perjury, of fighting and expense, before it was proved to be a sliam. That was a great evil. The other was that there were real honest transactions which were asserted to be shams when tliey were not, and in those cases there was apt to be much perjury and great expense before it was decided. For those reasons it was thought, and reasonably and properl}' so, that it was desirable to put a stop to this. That was the beginning of the series of Bills of Sale Acts, the first of which was passed in 1854, and said this : Where there is a bill of sale, or where there is a written agreement in which it appears that you have got a securit}", or even I suppose a transfer of the whole propert}', at all events that you have got a security, — a bill of sale, — that shall within a short time be registered, and two things are to follow from it. In the first place its being registered will put an end to any fear that any one should start forward afterwards and sa}'. The transaction being kept secret is a proof that it was a sham transaction, for, it being actually registered as bills of sales are required to be, it could no longer be secret, and there would be no badge of fraud in that respect. The other was, if it be not registered, then so long as the goods are in the apparent possession of the person to whom they originally belonged, so long it shall be void, as against a certain class of persons, namely, execution creditors, and various other persons that were named. The only thing that I would say at the outset upon this with regard to the 1st section is, that the first Bills of Sale Act applied, not only to sales and transfers by the grantor (the man who had the goods) by way of securit}- and otherwise, but also to transfers by the sheriff, when he had seized those goods. Nobod}- for a moment would suppose that it was a possible thing when the sheriff had seized the goods and sold them, that the sheriff should make out a bill of sale, and that the sheriflf should keep possession — that was out of the question. But it was thought, and indeed it was found by experience, that a very common SECT. II.] COOKSON V. SWIRE. 389 mode in which a sham actually took place, when there was an execution, was this, — that the execution debtor bought back his own goods, getting a man of straw to come forward and pretend this, — It is I who have bought them from the sheriff, and although I have lent money to you, and you have given me security, and I let you have the goods, still it is I who bu}' them from the sheriff. Consequently the act of Parliament very judiciously' said bills of sale shall be registered as well when the^' are given by the man himself, as when the sheriff has taken them in execution from him. Nothing of that sort applies here, nothing arises here about it, for no sheriff had anything to do with this matter. Now, coming to apply this act to the present case, we find that in 1873 the Reverend Samuel Vaughan was in debt. Mr. Swire, who seems to have been his brother-in-law and also trustee, I suppose, for Mrs. Vaughan, agreed to advance money to pay off that debt, and for that purpose, — it was a very proper thing to do, — he said I will take the goods from you, I will take a security if 30U like upon all those goods, and if you pay off that security, well and good ; if not, it is evi- dent that the mtention of Mr. Swire was, that these goods should be a security to him for the money which he had advanced, whether out of his own pocket, or as trustee for his sister we really do not know, and it is not material — he intended that these goods should be a security for that advance, and it was obviously the intention that the}' should remain in the Rev. Samuel Vaughan's house and be used bj- the Rev. Samuel Vaughan and his family — in fact, be to all intents and purposes in the apparent ownership of the Rev. Samuel Vaughan. That bill of sale, as was necessary under the Bills of Sale Act which then existed (this was in 1873), was registered, and it would therefore at the end of five 3'ears require to be re-registered, or otherwise it would have the same effect as if it had never been registered, and would consequently be void as against the class of persons who were named m the acts existing at that time. I do not know that it is very material to say anything further about it than that. This security which was taken by Mr. Swire in 1873 contained at the end a provision that if j\Ir. Vaughan did not paj' the money owed when a demand had been made in writing, then it should be in tlie power of INIr. Swire or his assigns to sell the goods absolutely by private bargain. Now it happened that at the time when this transaction took place it became known to people that there was a creditor who was likely to come upon the Rev. Samuel Vaughan and to seize his goods, or rather not his goods but the goods which were in his apparent possession as it was said ; and people also Ijccame aware that owing to the neglect to re-register the bill of sale, inasmuch as the term of five years had elapsed in 1878, that bill had become an unregistered bill and was con- sequently void as against those against whom unregistered bills of sale were made void, though not, under the law as it then stood, void as 390 COOKSON V. SWIKE. [CHAP. III. ■ against anybody else. That being so, there is no doubt in my mind that fornuil notice to Mr. Vaughau to pay off the money was given in order that Mr. Swire should be in a position legally to sell the goods. I have no doubt whatever that that was done for the very purpose and object that by selling those goods they should be able to defeat the creditor who would come against the Rev. Samuel Vaughan and would seize those goods which reallj' and truly belonged to Mr. Swire, — at least for all substantial purposes they belonged to him, because I sup- pose the}' were mortgaged to their full vaUie, — but which had been left as I have described in the possession of the Rev. Samuel Vaughan. There is nothing whatever illegal, there is nothing immoral, there is nothing improper in that. It is conceded that it would have been per- fectly good, when that notice had been given, if Mr. Swire, acting in his own interest, had come with porters and taken the goods and carried them out of the house, although that had been done onl}- two minutes before the sheriff's officer had turned the corner of the street to come and seize them all. I make no doubt that it was entirely with that object that the transaction took place with Charles Vaughan, the son of the Rev. Samuel Vaughan, who I dare sa}' had not much money of his own, — probably no immediate money; and Mr. Swire, advised I suppose b}' lawyers that this was the best course to pursue, said, I will sell them to you, Charles, as soon as I have got the right to do it. You cannot pay me I know, yow have not got tlie money, but I will lend j'ou the money. I agree to sell the goods to you and transfer the goods to you, and when they are transferred to ^'ou I will lend you the money if you will then give me a new bill of sale upon the goods so as to make them a security for the money I lend 3-ou. I have no doubt that that which was done in that way was intended to be done for the very purpose of defeating an execution, and of keeping these goods unsold for the benefit of the dying father and the mother and the children. It would have been very wrong and very improper to pretend to do all this, no doubt, but so far from its being wrong or improper to do it, I think it was, as I sa}', highly moral and right. The question as to whether or no it was a sham, the question whether or no there was really a bona fide transaction to the effect which I have described, was left to the jury, and their finding is unimpeached. Then comes the question of law. Now, says Cave, J., " they prove an agreement between Charles Vaughan and Mr. Swire by which the property in the goods was ti*ansferred from Mr. Swire to Charles Vaughan. Now that has been found hy the jury to be a bona fide agreement, and consequently the effect of that is to give to Charles Vaughan the title which Swire had." Now, had that been so, as at present advised, I should say, subject to what might be said by the other side, if it was necessary to hear them, that there was an apparent ownership in Samuel Vaughan at that time, and I sliould have said that if Mr. Swire had agreed to transfer the property from himself to Charles Vaughan, Cliarles Vaughan would be in the same position and no better SECT. II.] COOKSON 0. SWIKE. 391 than Mr. Swire. But iustead of thinking that it was an agreement to do that, I think it was intended to be, and was, an agreement not that Mr. Swire would transfer his own right, after having given the due notice by which he was enabled either, as I said before, to come with porters and carry away tlie goods, and so put an end to the matter, or to sell the property- out and out of the Rev. Samuel Vaughan in those goods, — it was not an agreement that he would transfer his own right, but that he would transfer the absolute property in the goods. What Mr. Swire had was the goods subject to an equity of redemption ; what he conferred upon Cliarles Vaughan was very likel}' not of more value, but it was a different tiling. It was the propert}' in the goods without any equity of redemption, and if the transaction was a hona fide one (and I do not myself see the slightest ground, when it has been explained as I have explained it, for saying it was not perfectly bona fide), I do not see how it comes within the earlier act. The earlier act makes that void as against the holder of a bill of sale and his assigns, and those who claim under him, but it does not make if. void as against those who become entitled to the goods by virtue of his exercising the power before ever the person's claim came into existence who liad the riglit to say tliat the bill of sale was void, and tliat was not until the time of the execution, when the sheriff's officer came in. in tiie present case. It seems to me, therefore, that upon that point. Cave, J., made a mistake — was under a misapprehension. Upon the rest I should be inclined to agree with him. We have not heard the counsel for the respondents, and it may be that on some of the other points the Court of Appeal may be right. I will not say that they are not, but upon that ground I think that this was not a case in which under the acts which liad been passed down to 1878 (I do not go further than that), it would have been void as against any one else. It is said that the act of 18«2 has the effect of making it void absolutely, or to a greater extent. Whatever effect that act may have on future bills of sale, as far as the present case is concerned, for reasons which I do not repeat, as they have been stated l)y the Lord Chancellor, and which are satis- factory to mj' mind, I think that it was not intended to be retrospective so as to bring it into operation in the present case. For these reasons I agree in the judgment which has been proposed. Order appealed from affirmed ; appeal dismissed with costs} 1 The Earl of SELnoRNK, L. C, delivered a coucurriug opinion, aud Lords Watsox and Fitzgerald also concurred. 392 INGALLS V. HERRICK. [CHAP. III. INGALLS V. HERRICK. SuPREMK Judicial Court of Massachusetts, November Term, 1871. [Reported in 108 Massachusetts, 351.] Tort against the sheriff of Essex for the conversion of twenty-one bales of flocks of wool, attached on December 17, 1868, b}- a deput}^ of the defendant, as propert}' of AVilliam H. Lougee. in a suit against Loiigee by one of his creditors. At the trial in the Superior Court, before Lord, J., the plaintiff in- troduced evidence which tended to show that on December 16, 1868, he bargained with Louis H. Bosworth, Lougee's duly authorized agent, for a purchase of the flocks at an agreed price ; that he bought them to sell again ; that the bales were numbered and marked, weighed 7,818 pounds, were of about the ordinaiy size of bales of cotton, and were stored in Lougee's factory ; tliat he told Bosworth that he had no place of ills own to store them ni, and should wish to have them remain for a while where tliey were, and would pay storage on them, and Bosworth agreed to tliis ; that he also told Bosworth that he was going to New Yoik the next da^', and must have some samples of the flocks to take with him, to resell them by; that on tlie evening of the same day, at Lougee's counting-room in Lawrence, he received a bill of parcels of the flocks, dated that day and signed by Lougee, specifying the num- bers, marks, and weights of the bales, and acknowledging receipt of the agreed price, to wit, $360.64 for six bales, weighing 2,254 pounds, at 16 cents per pound, and $612.04 for fifteen bales, weighing 5,564 pounds, at 11 cents per pound ; that at the same time Bosworth gave him parcels of the two kinds of flocks ; and that he saw the flocks in the store-room at the factory a week or two before December 16, but did not see them on that da}', nor afterwards, until the}' had been at- tached b}- the defendant's deput}'. Bosworth testified, among other things, " that after the bargain was made he went to the factory and examined the bales to get the num- ber and weight of each bale, and wrote the bill of parcels afterwards signed by Lougee, and delivered it to the plaintiff; that he opened two of the bales and took out small quantities of the flocks, which the plaintiff wanted for samples to sell by, and then sewed up the bales ; that he met the plaintiff" during the afternoon, and told him that the bill and the samples would be ready for him that evening, at Lougee's counting-room ; and that he gave these flocks to the plaintiff at the time of the delivery of the bill of sale." This was all the evidence of a delivery ; and the judge ruled that it would not authorize the jury to find a delivery of the goods as against the attaching creditor of the seller, an?! directed a verdict for the de- fendants. The plaintiff alleged exceptions. SECT. IL] INGALLS V. HEERICK. 393 J. K. Tarbox, for the plaintiff. S. B. Ices, Jr., aud S. Lincoln, Jr., for the defendaut. Colt, J. It was ruled as matter of law, in this case, that the jury would not be authorized upon this evidence to find a delivery of the baled flocks, sufficient to pass a title valid as against creditors of the seller. There was evidence tending to show that the bargain for the sale was made with one Bosworth, an agent of the seller. A receipted bill of parcels, signed by the seller himself, which contained a description of the bales by number, mark, and weight, was afterwards delivered by the agent to the plaintiff. The subject-matter of the sale was all the baled flocks then stored in the seller's factory. It was thus a com- pleted contract of sale, and as between the parties the title passed to the plaintiff. Was there evidence to go to the jury of a delivery suf- ficient as to creditors? This is the only question, and in disposing of it we must take the sale to have been made in good faitli aud for a valuable consideration. Upon this question, there was evidence tending to show that the flocks were bought for resale ; that the bales were large, not easily moved, and requiring room for storage ; that the plaintiff, having no convenient place, agreed with Bosworth, at the time of the bargain, to let them remain where they were, and pay storage, and directed him to obtain samples of the flocks, which he, the plaintiff, could take witli him to New York to sell by ; and that Bosworth accordingly opened the bales, took out samples of two kinds of flocks, sewed up the bales, aud gave the samples to the plaintiff at the time he delivered the bill of parcels. The plaintiff bought upon his own previous knowledge of the article, having seen the flocks at the store-room of the factory a week or two before. The samples were not required or used by him in reference to his own purchase, and Bosworth, in taking them from the bales, acted under the directions and as the agent of the plaintiff, and with reference to future sales by him. It was a sig- nificant act of ownership and possession on the part of the plaintiff, after the sale was agreed on, through Bosworth, acting in this respect as his agent. There is something more, therefore, here disclosed, than a mere contract of sale without delivery or possession under it. And we are of opinion, under the law heretofore laid down by the court, that the case should liuve been submitted, with proper instructions, to the It was early held that the possession of personal chattels by the vendor after an alleged sale is not conclusive evidence of fraud. Upon proof that the sale was made in good faith and for a valuable consideration, and that the possession after the sale was in pursuance of some agreement not inconsistent with honesty in the transaction, the vendee might hold against creditors, lirooks v. Bovvers, 15 ]\Iass. 244. It was declared by Morton, J., in Sliurtleff v. Willard, 19 Pick. 202, 211, that, whatever the rule upon this point may be in England 394 MoKIBBIN V. MARTIN. [CHAP. III. or elsewhere, it is perfectly well settled in a series of eases here, that the possessiou of the vendor is only evidence of fraud, which, with the manner of the occupation, the conduct of the parties, and all other evidence bearing upon the question of fraud, is for the consideration of the jury. It is certain that slight evidence of delivery is sufficient ; and if the buyer with the consent of the seller obtains possession be- fore any attachment or second sale, the transfer is complete without formal delivery. 8humway v. Rutter, 8 Pick. 443. A delivery of a portion in token of the whole is a sufficient constructive delivery as against creditors, although the goods are in the possession of various persons. Legg v. Willard, 17 Pick. 140. In Hardy v. Potter, 10 Gray, 89, the jury were told that, although the plaintiff only took a bill of sale, yet, if prior to the attachment he had been to the place where the lumber was, and had exercised acts of ownership over it, by virtue of his purchase, that would constitute a delivery of it good against a subsequent attachment. And this instruction was held not open to exception, although the evidence was that the purchaser had only been to Beverly and seen the lumber there. See also Phelps v. Cutler, 4 Gray, 137 ; Tuxworth v. Moore, 9 Pick. 347 ; Bullard v. "Wait, 16 Gray, 55 ; Ropes v. Lane, 9 Allen, 502, and 11 Allen, 591. The fact that the possession of the property is retained by the ven- dor by agreement, and does not follow the bill of sale, is held by this court to be, in most of the cases, evidence of fraud, to go to the jury. In many of the States, the fraud is held to be an inference of law re- sulting inevitably from the possession. And such was supposed to be the earlier English rule, as laid down in Edwards v. Harben, 2 T. R. 587 ; but the only point there decided was, that an absolute convey- ance without possession, if there be nothing but that, is in point of law fraudulent. In the more recent cases, it has been declared that the continued possession by the vendor, of goods sold, is a fact to be considered by the jury, as evidence of fraud, and is not in law^ a fraud in itself. Martindale v. Booth, 3 B. & Ad. 498. Benjamin on Sales, 363. There was evidence here of delivery, which should have been sub- mitted to the jury. Exceptions sustained. McKIBBIN V. MARTIN. Pennsylvania Supreme Court, March 2, 1870. [Reported in Q4 Pennsi/h-ania State, 352.] Error to the District Court of Philadelphia : No. 10 and 11, to July Term, 1869. The cases, the subject of these writs of error, were two feigned issues under the Sheriffs' Interpleader Act, in both of which Chambers Mc- SECT. II.] McKIBBIN V. MARTIN. 395 Kibbin was claimant and plaintiff ; Tliomas J. Martin was the defendant in one issue, and Charles D. KUne in the other. The issues depended on the same facts, and were tried together January 13, 1869, before Hare, P. J. The defendants had respectively recovered judgments against Jere- miah and W. C. McKibbin, who composed the firm of J. & W. C. Mc- Kibbin, and had been proprietors and conductors of the Mercliants' Hotel, a large hotel in the cit}' of Philadelphia. Executions were issued on the judgments, in September, 1868, under which the furniture, &c., in the hotel were levied upon as their property and claimed by the plain- tiff. The issues were to try the ownership of these goods. The plaintiff gave in evidence the following "Articles of agreement made the 11th day of June, 1868, between Jeremiah McKibbin and William C. McKibbin, co-partners as J. & W. C. McKibbin of the one part, and Chambers McKibbin of the other. Whereas, on the first day of February, a. d. 1865, the said Chambers McKibbin, being the owner and proprietor at the time, of the lease and good-will of the Merchants' Hotel, situated on the west side of Fourth Street, south of Arch Street, in the city of Philadelphia, also of its furniture and fixtures of all kinds, &c., and generally of all its arrangements and appurtenances of ever}- nature for the transaction of the business of hotel-keeping, on the said 1st February, 1865, sold the same to the said J. & W. McKibbin, for the sum of $30,000, of which $5,000 were to be paid in twenty days, and S5,000 in each of five other payments, respective!}', in 6, 12, 18, 24, and 30 months, with interest for deferred time, from Februarj' 1st, 1865, for each of which pa3-ments the said J. & W. McKibbin gave to the said Chambers McKibbin their promissory note ; and whereas the whole of said purchase-money remains due and unpaid, the parties of the first part having wholly failed to pa}' anj' of said notes or an}- interest thereon ; and whereas in the event of default in their payment, it was agreed that upon request of said Chambers McKibbin, said premises should be reconveyed : " Now, therefore, these presents testify that for and in consideration of the surrender and cancellation of the said promissory notes, and of the debt they represent, &c., and in pursuance of the aforesaid agreement and understanding at the time of the original purchase, the said parties of the first part have sold, &c., unto the said party of the second part, the lease of the said the INIcrchants' Hotel premises, togetlier with the good-will, fixtures, and appurtenances of the business now transacted in said hotel, and all and singular tlic furniture, &c., and generally all things for the transaction of the business of hotel-keeping, to them the parties of the first part belonging, and now to said premises and the business there transacted pertaining." Jeremiah McKibbin, a son of Chambers, and one of the defendants in the executions, testified amongst other things: " Ui)on sale, the property, in June, 1868, passed into the hands of my father, — the property described in bill of sale. The ' Press ' advertisement of 396 McKIBBIN V. MARTIN. [CHAP. III. dissolution, — also in 'Age,' — are authorized advertisements of the cluuige. From 11th of June, 18G8, C. McKibbin carried on the business of tlie hotel. Have had no interest in business since sale. Father has lived in the hotel since 1865. He has received the income, l)aid the bills, and conducted the business since sale. I and mj' brother remained as before, and I was superintendent. I have received noth- ing but compensation for services, at the rate of $3,500 a year, but there was no express bargain. Bills of hotel were made out in name of C. McKibbin as soon as could be printed. Bills are made out every day more or less. The sign ' Merchants' Hotel,' in front of hotel. No sign put up of C. McKibbin. My father boarded with me and paid no board. M}"^ mother had general charge of house and no board was charged. He assumed general charge of business as soon as sale. No express contract has been made with me. He directed the paj'ment of bills and business generally. He has since sale received proceeds of hotel and paid money out when necessar}'. Journal was of J. & W. C. McKibbin up to sale, and journal of C. McKibbin after sale in same book. I do not reside in hotel. The hotel deals with many people — probabl}' 200 — and with all, bills are made in name of father since sale. Boarders to firm, who are indebted, had to pa}' boarding in full to C. McKibbin." George Jacoby testified : "I was bookkeeper for two years, to middle December last. We were ordered on IGth of June to open new set of books, and did so in name of C. McKibbin. From that time he conducted the business. ' Merchants' Hotel ' is the only sign that was on the hotel for two years ; was no sign of J. & W. C. McKibbin. Busi- ness was transacted, bills printed, and receipted and rendered in name of C. McKibbin. Several were rendered in name of old firm and were sent back for correction. Cash-notes, checks, &c., were signed by C. INIcKibbin. The advertisements referred to in the testimony of Jeremiah McKibbin are as follows : — The co-partnership heretofore existing between the subscribers in the business of conducting the Merchants' Hotel of Philadelphia is dissolved, they having disposed of their interest therein to Chambers McKibbin. Jeremiah McKibbin, W. C. McKibbin. The undersigned has again become owner of the Merchants' Hotel, and will hereafter conduct and continue the business. He invites a con- tinuance of its former patronage. Chambers McKibbin. The court submitted the question of good faith to the jury, and re- served the following point : " Whether under all the evidence there was such actual, visible, notorious delivery and change of possession from the sons to the father of the furniture as would be valid in law against the creditor of the vendor." SECT. II.] McKIBBIN V. MARTIN. 397 The juiy found for the plaintiff. The court afterwards entered judg- ment for defendant in the feigned issue, on the point reserved. The plaintiff tooli out a writ of error in each case, and assigned the entering of judgment for the defendant on the reserved point, for error. A. JlcClure and T. Ciajler, for plaintiff in error. T. J. Diehl and P. Archer, Jr. (with whom was L. G. Cas&idy), for defendants in error. The opinion of the court was delivered by Sharswood, J. There are probabl}' no more difficult and embarrass- ing questions than those which relate to the respective provinces of the court and of the jur}' to determine what is law and what is fact. It would require a volume to consider the subject in all its bearings, and deduce accurate and intelligible principles from the great mass of the decided cases, and a philosophical treatise on this important head is still I think a desideratum of our legal literature. There are undoubt- edl}' some rules clearly established — these are plain lines of demarca- tion, but there is a border-land of controversy in which the opposing principles seem to be in continual conflict, the victor}' sometimes inclin- ing to one side and sometimes to the other. This conflict often has ended in a reasonable compromise b}' which the question has become what is termed a mixed question of law and fact, to be submitted to the decision of the jur}' under proper instructions from the court. One of the questions upon which difficulty has often arisen is fraud in the sale or transfer of chattels under the Statute of 13 Eliz. c. 5, Roberts's Dig. 20.3. Such fraud may be either actual or legal. Actual fraud or fraud in fact consists in the intention to prevent creditors from recover- ing their just debts by an act which withdraws the property of a debtor from their reach. Fraud in law consists in acts which, though not fraudulently intended, yet as their tendency is to defraud creditors if they vest the property of the debtor in his grantee, are void for legal fraud, which is deemed tantamount to actual fraud, full evidence of fraud, and fraudulent in themselves, the policy of the law making the . acts illegal : Baldwin, J., in Hanson v. Eustace, 2 How. G88. Actual fraud is always a question for the jury ; legal fraud, whore the facts are undisputed or are ascertained, is for the court. Dornick v. Reichen- back, 10 S. & R. 90. " As remarked by an eloquent writer," says Chief Justice Gibson, " these statutes of Elizabeth produce the most benefi- cial effects by placing parties under a disability to commit fraud in re- quiring for the characteristics of an honest act such circumstances as none but an honest intention can assume ; and they seem to have been expressed in general terms purposely to leave room for a large inter- pretation by the judges, who, in accordance with the spirit rather than the words, have engrafted on them such artificial presumptions and legal Intendments as are ordinarily subjects of judicial construction. In fact tliey act exclusively by presumptions, not always infiexible indeed, but sometimes amounting to legal conclusions." Avery v. Street, 6 Watts, 247. 398 McKIBBIN V. MARTIN. [CHAP. III. lu Twyiic'.s Case, which came up in the Star Chamber in 44 Eliz., and is reported 3 Rep. 80 b, Moore G38, one of the badges of fraud was declared to be that ''the donor continued in possession, and used the goods sold or given as his own ; and by reason thereof he traded and tratiicked with others, and defrauded and deceived them." No distinc- tion was attempted between actual and legal fraud, and the tribunal for- bade an}- question as to law and fact. It is unnecessary to trace the decisions in England. Clow v. Woods, 5 S. «fe R. 275, decided bj' this court in 1819, is the Magna Charta of our law upon this subject. The principles settled in that case have been recognized and affirmed by a bead-roll of subsequent decisions, which it would be a mere affectation of learning to cite. Without adverting to other points, it established tliat retention of possession was fraud in law wherever the subject of the ti'ansfer was capable of delivery and no honest and fair reason could be assigned for the vendor not giving up and the vendee taking posses- sion. Since then the courts have been principally occupied in deter- mining when the evidence of change of possession was such as to present a question of law for the court or of fact for the jury. No point as to actual fraud arises on this record. That was sub- mitted to the jury, and decided by them in favor of the plaintiff. The whole question of legal fraud, however, was reserved and judgment en- tered on the reservation for the defendant. If there was evidence fi'om which a jur}' would have been justified in inferring, under instructions from the court, that there had been in point of fact an actual and exclu- sive change of possession, it ought, as we think, to have been submitted to them. The reserved point comprehends two questions, which, in the consid- eration of the case, it will be best to keep distinct. First, was there evidence from which the jury would be permitted to find such a deliver}-, actual or constructive, as the law requires to make the sale valid as against creditors? Second, was the possession taken by the vendee exclusive of the vendors or concurrent with them, in point of law? 1. Whenever the subject of the sale is capable of an actual delivery, such delivery must accompany and follow the sale to render it valid against creditors. The court is the tribunal to judge whether there is sufficient evidence to justify the inference of such a delivery. If there is any question upon the evidence as to the facts, or resting upon the credibility of witnesses, the determination of that must be referred of course to the jury. But if not, it is incumbent upon the court to decide it, either by a judgment of nonsuit or a binding direction in the charge. Young V. McClure, 2 W. & S. 147 ; McBride v. McClelland, id. 94; Milne v. Henry, 4 Wright, 352 ; Dewart v. Clement, 12 id. 413. But it often happens that the subject of the sale is not reasonably capable of an actual delivery, and then a constructive delivery w-ill be sufficient. As in the case of a vessel at sea, of goods in a warehouse, of a kiln of bricks, of a pile of squared timber in the woods, of goods in the posses- sion of a factor or bailee, of a raft of lumber, of articles in the process SECT. II.] McKIBBIN V. MARTIN. 399 of manufacture, where it would be not indeed impossible, bat injurious and unusual to remove tiie property* from where it happens to be at the time of the transfer. Clow v. Woods, 5 S. «& R. 275 ; Cadbur^' v. Nolen, 5 Barr, 320 ; Linton v. Butz, 7 id. 89 ; Ha\-es v. Hunsicker, 2 Casey, 58 ; Chase v. Ralston, 6 id. 539 ; Barr v. Reitz, 3 P. F. Smith, 256 ; Benford v. Schell, 5 id. 393. In such cases it is onl}' necessar}' that the vendee should assume the control of the subject so as reasonably to indicate to all concerned the fact of the change of ownership. Where notliing of the kind has taken place, it is the duty of the court to pro- nounce a mere symbolical delivery to be insufficient ; but where there is evidence of such assumption of control, it is for the jury to say whether it was bona fide or merel}- colorable, and whether it was enough to give notice to the world. The question in such case is, did the ven- dee do all that he might reasonably be expected to do in the case of a real and honest sale? In Barr v. Reitz, 3 P. F. Smith, 256, the rule was clearly expressed in the opinion of the court by Mr. Justice Agnew. " In considering the question what is an actual deliver3', the nature of the property- and circumstances attending the sale must be taken into the account. We are not, in carrying out a mere rule of policy, to con- found all distinctions between that which is capable of easy delivery and that which is not. Squared timber lying in the woods, or piles of boards in a 3'ard, are incapable of the same treatment as a piece of a cloth, or a horse. So there are many cases which allow the force of those circumstances, which take away any false color or appear- ance of ownership remaining in the seller." Then, after citing a number of decisions, it is added : " But without affirming these doctrines to the extent these cases might seem to warrant, it is sufficient to sa}' thej' are illustrations of the principle we have stated, that the circumstances may prevent the court from pronouncing it a fraud, per se, and carr}- the case to the jury on the facts with proper instruction from the court on the law, if the jury find the delivery of possession merely formal or con- structive." The distinction founded upon the principle here stated between a question of law and one of fact, may be illustrated by a familiar example. Upon the sale of a single board, or of a cartload of boards, it would not do to set up a constructive deUvery by marking, and letting it remain where it was until it was convenient to remove it. Tiie court would be bound to hold as matter of law, that such articles were capable of actual delivery. But it would be different with a board- yard, filled with many piles of lumber. There the circumstances are such as to render an actual delivery and i-emoval impracticable, or at least injurious and expensive. The vendee must assume tlie control, and do all that an honest man would reasonably be expected to do to advertise the public of the sale. This seems to be just the difference between the case of Stcelwagon V. -Jeffries, 8 Wright, 407, upon which the court below relied, and the evidence as it appears on tliis record. That was the sale of the furni- ture of a dwelling house. Nothing is easier than to remove it to another 400 McKIBBIN V. MARTIN. [CHAP. III. house, or if tluit be not necessary, for the vendor to leave the house and llie vendee to take possession with all the ordinary indicia of owner- ship. Tiiat is tlie ground upon whicli the present Chief Justice placed that determination. " Wh}'," says he, "is not the transferor house- hold property to be actual and exclusive like that of an}' other personal property ? It is as capable of manual occupancy and removal as almost an}' other kind. If the sale be actual it usually' is removed : if it be only for the purpose of securing it against creditors, wh}- shall it not stand on the same platform with other property, capable of delivery and change of possession ? " But tlie circumstances of a large establishment like the " Merchants' Hotel " are entirely different. Here are many hun- dred lodging-rooms, parlors, and sitting-rooms, besides the culinar}'' department with its necessar}' offices, all fully furnished. To what other building can the vendee remove them, or at least without great deterioration and expense ? They are valuable mainly for the purpose for which they are used and in the place where they are situated. It is enough that the vendee assume the direction and control of them, and in such an open, notorious manner as usuall}' accompanies an honest transaction. Whether all was done that ought to have been done in this instance, and whether the change of possession was real and bona f,de — not merelj' colorable and deceptive — leaving the actual posses- sion and control in the vendors, were questions of fact which ought to have been submitted to the jur^'. 2. But the law undoubtedly is, that not onl}' must possession be taken by the vendee, but that possession must be exclusive of the vendor. A concurrent possession will not do. " There cannot in such case," said Mr. Justice Duncan, "be a concurrent possession ; it must be exclusive, or it would by the polic}' of the law be deemed colorable." Clow v. Woods, 5 S. & R. 287. And again, in Babb v. Clemson, 10 id. 428: "There cannot be a concurrent possession in the assignor and assignees ; it must be exclusive, or it is deemed colorable and fraudulent. To de- feat the execution, there must have been a bona fide substantial change of possession. It is mere mocker}- to put in another person to keep possession jointly with the former owner. A concurrent possession with the assignor is colorable." But what is the concurrent possession which will be deemed such as matter of law? Evidently as owner, or accompanied with the ordinary indicia of ownership — such as will lead an}- person not in the secret to infer that there has been no actual change. The vendor must appear to occupy the same relation to the proi)erty as he did before. In such a case the court must pronounce it fraudulent and colorable per se. ^Ve have been referred to three cases only in our books which were determined on this ground. These were all of the character I have stated. Hoffner v. Clark, 5 Whart. 545 ; Brawn V. Keller, 7 Wright, 104 ; Steelwagon v. Jeffries, 8 id. 407. Certainly it may be considered as settled by abundant authority in this court that where there has been a sufficient actual or constructive delivery to the vendee, and he is in possession, the fact that the vendor is employed as SECT. II.] McKIBBIN V. MARTIN. 401 a clerk or a servant about the establishment, in a capacity which holds out no indicium of ownership, does not constitute such a concurrent possession as the law condemns. In such cases it is a question for the . jur}' whether the change of possession has been actual and hona fide — not pretended, deceptive, and collusive. If there are facts tending to show that he had a beneficial interest in the business ; that the proceeds of it went to him beyond a reasonable compensation for his services ; tliat he had an unlimited power to draw upon the till ; or that with the knowledge of the vendee he took money to pay his own debts — these are facts for the jurj'. I will refer to a few of the cases which sustain this view. Thus in McVicker v. May, 3 Barr, 224, a sale by a father to a son ; when the sou had removed to another tavern-stand the father continued to live with him, and was employed about the house as a ser- vant, "When the son opened the new tavern," say the court, " his mother and sister kept house for him, and his father did jobs ; but the son's possession and use of the goods were exclusive. But if mere co- habitation Avere a badge of fraud, a father's sale to his unmarried son would seldom be sustained. It certainly was not necessary for the son to turn his father out of doors." Forsyth v. Matthews, 2 Harris, 100, as explained by Mr. Justice Lowrie, before whom the case had been tried below, 2 Casey, 74, was a sale by a son to his father, and though the business continued to be conducted in the same place and with the as- sistance of the son, yet there being evidence of an actual transfer of the possession and control of the property, the sale was sustained. Childs V. Simmons, an unreported case, cited 2 Casey, 74 ; the transfer was by a storekeeper to his clerk, the vendor continued to aid in the store, but the sign w^as changed, and the sale was upheld. Hugus v. Robinson, 12 Harris, 9 ; tlie subject was a drugstore. The vendee bought it for his son, who had been a clerk and apprentice of the vendor, and put liim in possession. The vendor attended the store ver}'' much as before, and tlie signs were not changed. It was left as a question of fact, to the jury, and the judgment was affirmed. In Dunlap v. Bournonville, 2 Casey, 72, two brothers transferred a coachmaker's establishment to a tliird, and the vendors remained in the capacity of foremen. It was held that it ought to have been submitted to the jury. Chief Justice Thomp- son has said that this case stands on the very outer verge of settled principles, but on its facts is still within them : 8 Wright, 412. In Bil- lingsley v. White, 9 P. F. Smith, 464, two partners sold out a store of goods to the brother of one of them. One of the vendors continued in the store as a hired hand. " If," said Mr. Justice Williams, " Billings- ley's acts and declarations as a salesman had been such as to leave it doubtful whether he was acting as owner or agent, then his presence and connection with the goods would have been such evidence of re- tained possession as to render the sale fraudulent. But if his acts and declarations were professedly and apparently those of a mere agent, and were so understood by the parties with whom he dealt, as all the evidence tends to show, then they constituted no such badge of fraud 402 LANFEAR V. SUMNER. [CHAP. III. or evidence of retained possession as would justify the court in declaring the sale fraudulent." I frankly confess that I have not regarded this line of decisions with favor. Dunlap v. Bournonville was tried before me in the District Court, and I entered the judgment of nonsuit, which was there reversed. I dissented from the determination in Billingsley v. White, because I was afraid that it went a step further than an}' of the preceding cases in re- cognizing the right of the vendee to emplo}- the vendor as his agent to conduct the business. Perhaps it does not go that far. But I have been too long on the bench — now nearly twent^'-five years — not to have learned this lesson, that a judge has no right to adhere to his own favorite opinions, after the}' have been reversed or overruled. It is his duty to administer justice according to the law as it is settled — not ac- cording to his own notions of what it ought to be. Neminem oportet esse sa2nentiorem legibus : no man out of his own private reason ought to be wiser than the law, which is t-he perfection of reason, says Lord Coke, 1 Inst. 97, b. Judgment reversed, and venire facias de novo awarded? SECTION III. How Far Delivery is Essential to the Transfer of Title, AMBROSE LANFEAR v. CHARLES P. SUMNER. Supreme Judicial Court of Massachusetts, March Term, 1821. [Reported in 17 Massachusetts, 110.] Trover for the conversion of one hundred chests of 3'oung hyson and fifty chests of h3'son tea, averred to be the property of the plain- tiff. Trial on the general issue, before the Chief Justice, November term, 1819. The plaintiff, to prove his property, produced in evidence the fol- lowing paper: " For value received, I hereby assign and set over to Ambrose Lanfear, and to his assigns, one hundred chests of young hyson tea, and fifty chests of hyson tea, shipped at Canton, by Ben- jamin C. Wilcocks, on board of the ship ' Ospre}',' Captain Brown, bound to Boston, being m>' property and consigned to me. Phila- delphia, July 2d, 1819. William Wain." The plaintiff was the agent of tlie house of Thomas Wilson & Co., merchants in England, to whom the said Wain was indebted in a 1 For a concise statement of the law in the several States as to fraudulent retention of possession bj' the seller, see Benjamin on Sales (Bennett's ed., 1899), p. 489. SECT. III.] LANFEAK V. SUMNER. 403 much larger sum than the value of the teas. By the testimony of the said Wain, and other testiraon}- in the case, it appeared that the above- recited paper was executed and delivered to the plaintiff before two o'clock p. M. of the said 2d of July. No money was paid by the plain- tiff, nor any discharge executed of the debt due to said Wilson & Co., or of an}' part thereof. The action was defended under the said Sumner, who, as a deputy sheriff of Suffolk, hacf attached the same teas at the suit of James & Thomas H. Perkins & Co., merchants in Boston, and creditors to Wain to a large amount, upon bills of exchange drawn upon him and by him accepted. The attachment b}- the defendant was made on the same sec- ond of Jul}', at half an hour past five o'clock in the afternoon ; and pos- session of the teas was taken by him. It appeared that the paper aforesaid, purporting to be an assignment of the teas in question to the plaintiff, was by him transmitted to John Dorr, merchant in Boston, as soon as the course of the mail would ad- mit, and was received by Dorr on the 5th of July, who, within an hour after the receipt of the same, made demand of the teas, by virtue of an authority given by the plaintiff on the back of the paper ; but he did not obtain possession. It appeared that the teas arrived at Boston, in the ship " Osprey," a day or two before the said 2d of July, consigned by the said Wilcocks to the said J. & T. H. Perkins & Co., on the account and risk, and for the use of the said Wain ; and the said Perkins & Co. had entered them in the custom-house, and had given bonds for the duties thereon. An offer was made by Dorr, in behalf of the plaintiff, to indemnify them against their said bonds, and to pay all further charges thereon. A verdict was taken for the plaintiff by consent,'to be set aside if the action could not be maintained on the foregoing facts, and a nonsuit entered ; otherwise judgment was to be rendered on the verdict, with additional interest. Prescott and Webster^ for the plaintiff. Hubbard, for the defendant. Jackson, J., delivered the opinion of the court. Considering this case in the most favorable view for the plaintiff, it is the case of two creditors, each endeavoring to secure his debt out of the same fund. Neither party had notice of the measures adopted by the other; but each was using his diligence fairly, for the purpose of obtaining payment of a just debt. The question is. Which acquired the best legal title? In this statement of the case, we consider Messrs. Wilson & Co., for whom the plaintiff was agent, as the real plaintiffs, and the Messrs. Perkins & Co., who caused the attachment to be made, as the real defendants. The conveyance, relied on l)y the plaintiff, was intended as a pay- ment, to the amount of what the goods should produce ; or as security of a debt due from Wain to Wilson & Co. But it is objected that this consideration of the conveyance does not 404 LANFEAR V. SUMNER. [CHAP. III. appear in the instrument; that there was no discharge of the debt; no receipt for the goods, with an obligation to account for the proceeds ; and no writing whatever showing the agreement which is said to have been made between the parties ; but that the instrument purports to be an absolute conveyance b}- Wain, for a full price received, which must have operated as a fraud upon all the other creditors of Wain. These objections are certainly entitled to much consideration ; but there is another defect in the plaintiff's title, which we think fatal, and that is the want of a delivery to him, in pursuance of the supposed conveyance. A few hours after this conveyance was made in Philadelphia, the de- fendant attached the goods in Boston. The attaching creditors are to be considered as purchasers for a valuable consideration, and, in the present case, as purchasers bona fide, and without notice of the prior conveyance to the plaintiff. The defendant took possession under their title ; and the plaintiff never acquired possession. The general rule is perfectl}' well established, that the delivery of possession is necessary in a conveyance of personal chattels, as against every one but the vendor. When the same goods are sold to two dif- ferent persons, b}' conveyances equally valid, he who first lawfully acquires the possession, will hold them against the other. This prin- ciple is recognized in the case of Lamb et al. v. Durant, 12 Mass. Rep. 54, and in Caldwell et al. v. Ball, 1 D. & E. 205. The latter indeed was a case, not of actual delivery of goods to either party, but of deliver}- of the bill of lading. There were two bills of lading, signed at different times by the master of the ship ; and the party who first obtained one of them by a legal title from the owner of the goods, was held to have the best right, although the bill of lading, under which he claimed, was made the last. The indorsement and delivery of the bill of lading, in such a case, is equivalent to the actual delivery of the goods. This is also the rule of the civil law. When the same thing is sold to two different persons, " Manifesti juris est, cum, cui priori traditum est, in detinendo dominio esse potiorem." Cod. 3, 32, 15. So Voet ad Pand. lib. 6, tit. 1, § 20, "Ad vindicationem rei duobus separatim diverso tempore distractae, non is cui priori vendita, sed cui (pretio soluto, vel fide de eo habita) prius est tradita, admittendus est." And Pothier, in the place cited in the argument, Vente, No. 318, 320, states the same principle ; and puts the case of a sale without deliver}', and a subsequent attachment by the creditors of the vendor, who, he sa3-s, would hold the goods against such a purchaser. There are, indeed, in the civil law, various modes of taking or de- livering possession ; that is, different acts, which are equivalent to actual possession ; resembling, in our law, the acknowledgment and registry of a deed conveying land ; receiving the keys of the warcliouse, in which goods are deposited ; and the case before mentioned of receiv- ing the bill of lading of goods at sea. But it is still necessary to everj^ SECT. III.] LANFEAE V. SUMNER. 405 conveyance of goods, that there should be an actual or legal delivery of them to the vendee. Upon these prhiciples, it is obvious that the defendant must prevail in this case ; unless there was a legal delivery to the plaintiff, or some- thing equivalent to an actual dehvery, before the attachment made by the defendant. We can see nothmg of that kind in the evidence re- ported. The plaintiff and Wain, it is true, supposed at the time of their negotiation, that the goods were at sea. But if they had been so, Wain had no bill of lading, and no other document or evidence of his title, to deliver to the plaintiff. The case, therefore, does not come within the rule applicable to the indorsement and delivery of a bill of lading ; nor can we perceive that it comes within any other excep- tion to the general rule, which requires an actual delivery to the vendee. Suppose that these goods had been consigned to Wain himself, and that tlie bill of lading had come to his hands after tiiis negotiation with the plaintiff. U, in that case, a third person had purchased the goods of Wain for a valuable consideration, and without notice of any prior conveyance, and had taken the bill of lading indorsed by AValn ; it would not, we think, be doubted that he would hold the goods against the plain- tiff. If so, it shows that the property was not absolutely and entirely transferred from Wain to the plaintiff. It might be so, as between them- selves ; but not with regard to a subsequent bona fide purchaser, for a valuable consideration ; and this is the relation in which the defendaut now stands. In the case of Lempriere et al., Assignees of Syeds, a bankrupt, v. Pasley, 2 D. «fc E. 485, Syeds before his bankruptcy had covenanted, for a valuable consideration, to assign and deliver to the defendant some goods, which he expected on board a certain ship ; and he also covenanted that he would indorse and deliver to the defendant the bill of lading, as soon as he should receive it ; and at the same time he did deliver tlie poRcy and letters of advice of the expected shipment, which were all the documents he then had. After he became bankrupt, the bill of lading arrived, and he immediately indorsed it to the defendant, who thereupon received the goods. It was decided that the defendant should hold them against the assignees of the bankrupt, on the ground that tlie assignees stood in the place of the bankrupt, and took his property sub- ject to all equitable liens, to which it was subject in his hands. It was not contended, in the argument for the defendant, that there was a complete transfer of the property, before the bankruptcy ; but only an equitable lien or interest in the defendant. A commission of bankruptcy has been sometimes called a statute execution ; but the assignees have not, in all respects under the com- mission, tlie same rights as a creditor by execution, or in our law an attaching creditor. Such a creditor, as before observed, is to be con- sidered as a purchaser for a valuable consideration. Ami in the argu- ment for the defendant, in the case last cited, it was thought material 406 DEMPSEY V. GARDNER. [CHAP. III. to distinguish between the rights of the assignees, and those which would luive been acquired by a creditor under an execution, or a bona Jide purchaser under the bill of lading ; it being admitted that the latter persons, if tliey had first got possession, without notice of Paslej's claim, would have held the goods against hini. In the opinion of the court, also, the same distinction is noticed ; and it is admitted that such a purchaser, having obtained possession, woidd hold against Pasle}-, although the assignees could not. The point decided in that case de- pended on the English bankrupt laws, and therefore does not aflect the question now before us ; but the course of reasoning, and the opinions expressed in it, tend strongly to confirm the opinion which we have adopted in the present case. Plaintiff nonsuit. EDWARD C. DEMPSEY v. WILLIAM T. GARDNER. Supreme Judicial Court of Massachusetts, March 14 — September 4, 1879, [Reported in 127 Massachusetts, 381.] Tort, for the conversion of a horse. The defendant, a constable, justified under a writ against Margaret C. Dempsey, the plaintiff's mother, by virtue of which he attached and sold the horse as her property. At the trial in the Superior Court, before Pitman, J., the plaintiflf contended that he was the owner of the horse at the time of the attach- ment ; and offered evidence tending to show that, about three months before the attachment, having previously advanced to his mother con- siderable sums of mone}', equal to or greater than the value of the horse, he received from her, upon payment of $15 in addition, a bill of sale of the horse for S2G0 ; which bill of sale he produced and proved, and testified that he bought the horse at that time from his mother. His mother also testified that she sold the horse to the plaintiff at that time. It further appeared that the horse had been always used in the family ; that the mother lived in her own house, and the horse was kept in her barn, and continued to be kept there after the bill of sale was delivered to the plaintiff ; and that the latter did not live with his motlier, but frequently went to see her; and he testified that, at such times, he saw the horse, as he also testified he did before the sale. The plaintiff's counsel, in repl}' to a question by the judge, admitting that there was no evidence of delivery for the consideration of the jur}', except such as might be implied from the execution and delivery of the bill of sale, the judge ruled that the plaintiff had not shown a title good as against a subsequent attaching creditor ; and ordered a verdict for the defendant. The plaintiff alleged exceptions. SECT. III.] DEMPSEY V. GARDNER. 407 J. P. Treadwdl, for the plaintiff. C. Hobbison, Jr., for the defendant. Gray, C. J. If the testimon}- at the trial was believed, the title in the horse passed as between the parties to the sale. Pratt v. Parkman, 24 Pick. 42, 46 ; Morse v. Sherman, 106 Mass. 430 ; Dugan v. Nichols, 125 Mass. 43. But b\- the law as established in this Commonwealth, it was necessary, as against subsequent purchasers or attaching creditors, that there should be a delivery of the property. No such delivery, actual or symbolical, was proved. The buyer did no act by way of taking pos- session or exercising ownersliip, and the seller did not agree to hold or keep the horse for him. The plaintiff's counsel, as he states in his bill of exceptions, in reply to a question from the judge presiding at the trial, expressly admitted that tliere was no evidence of delivery for the consideration of the jury, except such as might be impUed from the execution and delivery of the bill of sale. That was not enough. Carter v. Willard, 19 Pick. 1 ; Shumway v. Putter, 7 Pick. 56, 58, and 8 Pick. 443, 447; Packard v. Wood, 4 Gray, 307; Rourke v. Bullens, 8 Gray, 549 ; Veazie y. Somerby, 5 Allen, 280, 289. The cases cited for the plaintiff are quite distinguishable from this. In Tuxworth v. Moore, 9 Pick. 347, and in Bullard v. Wait, 16 Gray, 55, the horse was in the possession of a third person, to whom notice of the sale was given. In Chapman v. Searle, 3 Pick. 38, and in Ingalls V. Herrick, 108 Mass. 351, there was an express agreement lliat the seller should hold the property on storage for the buyer. In Thorndike v. Bath, 114 Mass. 116, the article was by express agree- ment left after the sale with the seller to be finished for the buyer. In Dugan V. Nichols, 125 Mass. 43, the question arose between the buyer and the assignee in bankruptcy of the seller, who had no greater rights than the seller himself; and the decision was put upon that ground. The case of Hardy v. Potter, 10 Gray, 89, was an action of trover against a deputy-sheriff for attacliing a quantity of lumber on mesne process against one Adams in January, 1856. At the trial the plain- tiff testified that he bought tlie lumber from Adams in the State of Maine in October, 1855, took bills of sale of it, and paid for it by his promissory notes ; that tlie lumber was then lying upon certain wharves in Beverly in this Commonwealth, in the custody of one Cross, an agent of Adams and to whom Adams promised to write ; that nothing more was to be done between the plaintiff and Adams in relation to the sale ; and that in the fall of 1855 the plaintiff saw the lumber in Beverly. Upon that evidence the plaintiff rested his case. But the report as published is imperfect, as we find by referring to the original bill of exceptions, in not stating that Cross, being afterwards called as a wit- ness for tlie defendant, testified, among other things, " that he was informed in the latter part of October, 1855, by Adams by letter that he had sold all the liunber, but was not informed to whom the sale was Tjaade ; that he learned for the first time in December, 1855, that the 408 HALLGARTEN V. OLDHAM. [CHAP. III. property had been sold to the plaintiff." This fact, though not par- ticiihirly noticed in the very brief opinion upon the point of deliver}', nui}' well have had an important influence upon the decision ; for where propert}' sold is at the time in the custody of a third person, notice to him of the sale is sufficient to constitute a deliver}' as against subse- quent attaching creditors. Tuxworth i\ Moore, 9 Pick. 347 ; Carter V. Willard, 19 Pick. 1 ; Russell v. O'Brien, 127 Mass. 349. Exceptions overruled. JULIUS HALLGARTEN v. JONATHAN OLDHAM. Supreme Judicial Court op Massachusetts, January 12 — April 3, 1883. [Reported in 135 Massachusetts, 1.] . Replevin of 497 slabs of tin. Writ dated September 29, 1880. The case was submitted to this court on agreed facts, in substance as follows : — The plaintiffs at the times hereinafter mentioned were bankers, and one Lissberger was a dealer in metals, all doing business and domi- ciled in the State of New York. Lissberger was largely indebted to the plaintiffs for advances of money made in New York ; and, as security therefor, the plaintiffs held merchandise, warehouse receipts, and other property, deposited with them in New York by Lissberger. On or about May 3, 1880, Lissberger applied to the plaintiffs, in New York, for a release of security to the amount of $11,000, so held by them, and offered to substitute therefor a warehouse receipt and weigher's certificate for certain tin of the same value, then, and until service of the writ in this action, stored in a warehouse belonging to one Damon, on Damon's Wharf, in the control of Gardner Prouty, in Boston, the receipt and property to be held as security in like man- ner with the securities for which it was substituted. The receipt, signed "Gardner Prouty, wharfinger," was as follows: "No. 919. Boston, April 26, 1880. Received on storage, at Damon's Wharf in store No. 8, for H. Lissberger, the following described merchandise from bark ' INIohican,' which we promise to deliver to him upon the payment of charges. Marks: Four hundred and ninety-seven (497) slabs tin." Prouty had received the tin at Boston, and there signed the receipt, and delivered it and the weigher's certificate. The plain- tiffs assented to Lissberger's proposition, received, in the usual course of business from Lissberger, the weigher's certificate and receipt duly indorsed in blank by Lissberger, and delivered to him the property for which lie had applied. This transaction took place in New York. No record of this transaction, or of any part of it, was made on the records of the city of Boston, and the tin was not delivered to the SECT. III.] HALLGARTEN V. OLDHAM. 409 plaintiffs, except so far as what is above stated constituted a delivery. The vrarehouse in which the tin was stored had been largely and exclusively used for the storage of property belonging to others than the owners of the warehouse for more than twenty years preceding this transaction, and the form of warehouse receipts given during that period by Prouty was lilce the one in this case, with this qualification, that, about eleven years before this transaction, there was introduced into the receipt, after the word "deliver," the word "to" followed by a blank space for the insertion of the word " him" or " them," this addition not having previously formed a part of the receipt. The warehouseman who issued the receipt in this case was not a pub- lic warehouseman, appointed under the provisions of the St. of 1860, c. 206, and the acts amendatory thereof. The debt of Lissberger for said advances is still unpaid, and exceeds the value of all the securities. The plaintiffs retained the receipt and certificate without action until August 7, 1880, when they gave notice to the warehouse- man that they held the receipt, having first learned on the previous day of the issuing of the attachment hereinafter mentioned. On June 15, 1880, the defendant, a deputy sheriff for Suffolk County, attached the tin as the property of Lissberger, upon a writ sued out of the Superior Court by Cyrus Wakefield and others against Lissberger, to recover a debt. The writ was returnable at July term, 1880, and was entered at that term; and at April term, 1881, judgment thereon was rendered for Wakefield and others in the sum of §27,000 and upwards, which judgment is in no part satisfied. The tin was held by the defendant under the attachment until the service of the writ in this action. There is no fraud or bad faith imputed to the plaintiffs in any of their dealings, or in their omission to give notice as aforesaid ; and neither of the plaintiffs in the action of Wakefield and others against Lissberger, nor the defendant in this action, had, until after August 7, 1880, any notice or knowledge of the transaction between Lissberger and the plaintiffs, or of any inter- est or claim of the plaintiffs in or to the tin, unless they are affected with notice by reason of the matters hereinbefore stated. The plaintiffs made due demand on the defendant for the amount of their debt, and otherwise complied with the provisions of the Gen. Sts. c. 12.3, § 03, and the debt was not paid or tendered; and, after the expiration of ten days from the demand, they brought this action. The law of New York, if material, is as stated in the judgments of its courts in the cases of Wilkes v. Ferris, 5 Johns. 335, and Yenni /•. McNamee, 45 N. Y. 614, which cases may be referred to. If the plaintiffs were entitled to recover, judgment was to be entered for them, with damages in the sum of one dollar, and costs ; other- wise, for the defendant, for a return, damages to be assessed, and costs. S. Bartlett and S. Lincoln, for the plaintiffs. F. E. Parker, for the defendant. 410 HALLGARTEN V. OLDHAM. [CHAP. III. Holmes, J. Two questions only are raised : the main one, whether enough had been done to give the plaintiffs a good title as against the attaching creditor ; the other, a preliminary inquiry whether the suffi- ciency for that purpose of what was done is to be determined by the law of New York or of Massachusetts. To dispose first of the preliminary matter. This case must be gov- erned by the ordinary rules applicable to similar transactions taking place wholly within this State. When a sale, mortgage, or pledge of goods within the jurisdiction of a certain State is made elsewhere, it is not only competent, but reasonable, for the State which has the goods within its power to require them to be dealt with in the same way as would be necessary in a domestic transaction, in order to pass a title which it will recognize as against domestic creditors of the vendor or pledgor. This requirement is not peculiar to Massachusetts, but has the sanction of tlie highest courts of the United States and of other States. Lanfear v. Sumner, 17 Mass. 110; May v. Wanne- macher. 111 Mass. 202, 208, 209; Green v. Van Buskirk, 5 Wall. 307, 212 ; s. c. 7 Wall. 139, 150, 151 ; Guillander v. Howell, 35 N. Y. 657 ; Olivier v. Townes, 2 Mart. n. s. La. 93 ; Clark v. Tarbell, 58 N. H. 88 ; Kice v. Courtis, 32 Vt. 460 ; Martin v. Potter, 34 Vt. 87, 88. See also Dicey on Domicil, 262, rule 57. It is not necessary for the purposes of this case to consider whether it should be dealt with as an exception to general rules, as it is regarded in Rhode Island Central Bank i'. Danforth, 11 Gray, 123, cited for the plaintiffs, or as an illus- tration of a sound and fundamental principle. We pass to the question whether enough had been done to give the l)laintiffs a good title as against the defendant. As this is to be decided by the same rules as if the whole transaction had taken place in Massachusetts, it is immaterial wliether the indorsement of the warehouse receipt, if effectual, created a pledge, a mortgage, or, as has been suggested, a transfer of the absolute title in trust to accom- plish the purposes of the transfer. Farmers' & Mechanics' National Bank v. Logan, 74 N. Y. 568, 582, 583. See also De Wolf v. Gard- ner, 12 Cush. 19, 26; Gibson v. Stevens, 8 How. 384, 400; The Thames, 14 Wall. 98, 108 ; Dows v. National Exchange Bank, 91 U. S. 618, 632 ; Casey v. Cavaroc, 96 U. S. 467, 477 ; Glyn v. Fiast & West India Dock Co., 7 App. Cas. 591, 606 ; s. c. 6 Q. B. D. 4V5, 480, 490, 499, and 5 Q. B. D. 129, 130. For, as against attaching creditors, the law of Massachusetts has always required a delivery, as well in the case of an absolute transfer, even a sale, as in that of a chattel mortgage or pledge, from the time of Lanfear v. Sumner, ubi supra, down to the latest volumes of reports. Burge v. Cone, 6 Allen, 412; Dempsey v, Gardner, 127 Mass. 381. Cf. Harlow v. Hall, 132 Mass. 232. Lanfear v. Sumner has been criticised in England, where the law appears to be otherwise ; Blackburn on Sales, 327, 328 ; Meyei.:itein V. Barber, L. R. 2 C. P. 38, 51 ; a fact to be remembered in dealing SECT. III.] HALLGARTEN V. OLDHAM. 411 with the English cases. But the plaintiffs do not attempt to over- throw the long-established rule of this State ; they say that they have satisfied it. And their argument is that the warehouse receipt, being the key to the property, has become a symbol representing it by a commercial usage of which the court will take notice, and that there- fore an indorsement and delivery of the receipt, under circumstances in which they cany an interest in the goods, amount also, by construc- tion of law, to a delivery of the goods within the requirements of the rule. It is said that, in adopting this view, we should only be extend- ing the principles already applied to bills of lading to other documents which are dealt with by merchants on the same footing. The difficulty in dealing with this argument arises largely from the very great ambiguity attaching to the word " delivery," in both American and I^uglish cases. It has been used often when it is evi- dent that the true question was only whether the property had passed. The simplest explanation even of Gibson v. Stevens, supra, would be that delivery was not necessary to pass property as against thnxl persons by the law of Indiana. See Pierce v. Gibson, 2 Ind. 408, 412. But the delivery required by the rule in Lanfear v. Sumner is delivery in its natural sense ; that is, a change of possession. And it cannot be borne in mind too carefully that the only matter now under dis- cussion is whether there has been a delivery in this sense, or dealings having the legal effect of such delivery, of the goods referred to in the warehouse receipt. Cases which turn on a question of property only, or in which delivery or its equivalent was not essential, whether because the question arose between the parties to the sale or mort- gage, or because delivery was not necessary in that jurisdiction to complete the transaction as against third persons, or for any other reason, are not precedents in point. Many such cases will be found ■which speak of documents as symbols of the goods. But that expres- sion will not help us, unless it means that a transfer of the documents has the effect of a delivery of the goods as against an attaching cred- itor, who would be preferred unless the goods had changed hands. The question is, then, how the transfer of any document can have that effect. The goods are in the hands of a middleman, and they remain there. A true change of possession could only be brought to pass l)y his becoming the servant of the purchaser for the purpose of holding the goods, so that his custody should become tlie possession of his master. But this is not what happens, and it has been held that less would satisfy the law. A carrier, or the warehouseman in this case, is not the servant of either party quoad the possession, but a bailee holding in his own name, and asserting a lien for his charges against all parties. He alone has possession of the goods, whether the document is transferred or not. But it has been held that the principle of the rule requiring a delivery is satisfied, although the letter of it is not, if the possessor 412 HALLGARTEN V. OLDHAM. [CHAP. III. of the goods becomes the purchaser's bailee. Tuxworth v. Moore, 9 Tick. 347; Russell v. O'Brien, 127 Mass. 349, 354; Dempsey v. Gardner, 127 Mass. 383. Now, it is obvious that a custodian cannot become the servant of another in respect of his custody except by his own agreement. And, a fortiori, when that custodian does not yield, but maintains his own possession, it is clear that his custody cannot enure to the benefit of another, as if it were the possession of that other, unless the bailee consents to hold for him subject to his own rights. The only way, therefore, in which a document can be a symbol of goods in a bailee's hands, for the purposes of delivery to a purchaser, is by showing his consent to become the purchaser's bailee. It may or ma}' not be true that, if a warehouse receipt contains an undertaking to deliver to order, that undertaking is to be regarded as an offer by the warehouseman to any one who will take the receipt on the faith of it, and that it will make him warehouseman for the indorsee, without more, on ordinary principles of contract. That is the argument of Benjamin on Sales (2d ed.), 676 et seq., criticising Farina r. Home, 16 M. & W. 119, and Blackburn on Sales, 297. But tlie criticism and the case agree in the assumption, that the only way in which the indorsement of a document of title can have the effect of a delivery is by making the custodian bailee for the holder of the document, and that he cannot be made so otherwise than by his consent. The necessity for notice, in those cases where notice is necessary, stands on the same ground. If the custodian has not assented in advance, he must assent subsequently ; and the principle is the same whether an express acceptance of a delivery order be required, or it is held sufficient if he does not dissent when notified. Boardman v. Spooner, 13 Allen, 353, 357. Cf. instructions of Shaw, C. J., to the jury in Carter v. Willard, 19 Pick. 1, 3 ; Bentall v. Burn, 3 B. & C. 423. It is true that there are one or two decisions of this court which it is somewhat hard to reconcile with the foregoing principles. The strongest of these is Green Bay National Bank v. Dearborn, 115 Mass. 219. In that case the plaintiff discounted Parks & Co.'s draft on Harvey Scudder & Co. against a railroad receipt, of which the folloAving were the material words: "Received from R. G. Parks & Co. one hundred barrels of flour consigned to Harvey Scudder & Co., Boston." This was delivered to the plaintiff in Wisconsin, on the understanding that the property was thereby transferred as security for the advance. Scudder & Co. declined to accept the draft, and the goods were attached by the defendant. The plaintiff" brought replevin and was held entitled to recover. It will be observed that, the docu- ment did not run to order, and was not indorsed, so that it could not be argued that the railroad company had attorned in advance ; and lliere was no notice to the company, so that it had not made itself ;he plaintiff's bailee subsequently, if ordinary principles were to ba SECT. III.] HALLGARTEN V. OLDHAM. 413 applied. It was said, however, that the carrier became the plaintiff's bailee from tlie time its receipt was delivered. A carrier does stand differently from other bailees in one respect. He has no delectus perso)ianan, but is bound to carry for any one who takes proper steps to make him do so. There is, too, the further circumstance, that the usual mode of shipping grain is to draw against it, and to get a bank to discount tlie draft. But it may be doubted whether the suggestion was warranted that a carrier would not ordinarily give up the goods except upon a production and surrender of the receipt. Forbes v. Boston & Lowell Railroad, 133 Mass. 154, 158. And, so far as the language might seem to imply that the mere passing of the property, as between the parties, made the carrier bailee for the plain- tiff by the general law of bailment, it seems to us too broad. Cf. Henderson v. Comptoir d'Escompte de Paris, L. R. 5 P. C. 253. But whatever the scope of Green Bay National Bank v. Dearborn, we cannot apply it as a precedent in the present case, so long as Lanfear v. Sumner stands. When a private warehouseman, who has an unfettered right to choose the persons for whom he will hold, gives a receipt containing only an undertaking to his bailor personally, without the words " or order," or any other form of offer or assent to hold for any one else, it is impossible to say that a mere indorsement over of that receipt will make him bailee for a stranger. He has not consented to become so, even under the principles argued for by Mr. Benjamin. And, until he has consented to hold for some one else, he remains the bailee of the party who entrusted him with the goods. There was, therefore, nothing done in this case to satisfy the rule of Lanfear v. Sumner. If it be suggested that the rule would not help a party chargeable with notice, and that the fact that the receipt had Ijeen indorsed over amounted to constructive notice to the defendant, the answer is that, supposing notice would have put an end to his right to attach, when there had not been a delivery or its equivalent, the defendant was not bound to inquire for the receipt. To call such an instrument a key to the goods is a petitio prindpii. For it assumes that the receipt must be produced in order to obtain them, or tliat a transfer of it witliout the bailee's knowledge will atfect his rights. But the bailor is not 'uound to produce the receipt as a condition precedent to his right to get back the goods on payment of charges, and the bailee can safely deliver the goods without it. The appeal to commercial usage cannot help the plaintiffs' case. If there be any usage to treat such documents as tliis as symbols of property, in the sense of the argument for the plaintiffs, it is simply a usage to disregard well-settled rules of law affecting the rights of third jjersons. But we doubt if a prudent merchant would advance on the^indorsement of a private warehouse receipt not running to order, before he had made sure of the warehouseman's assent. We are confirmed in the view which we take, by observing that the Legis- 414 MEADE V. SMITH. [CHAP. Ill, latiiro, in dealing with public warehousemen, and providing that " f.ie title to goods stored . . . shall pass to a purchaser or pledgee by the indorsemeut and delivery to him of the warehouseman's receipt" (Pub. 8ts. c. 72, § 0), as a preliminary to that result, expressly requires, in § 5^ that the receipt "shall be negotiable in form." Judgment for the defendant} MEADE V. SMITH and others. Connecticut Supreme Court of Errors, June, 1844. [Reported in 16 Connecticut, 346.] This was an action of trover for certain cows, oxen, carts, and other articles of personal property, against Ebenezer Smith, Jacob Dayton, jr., and David D. Husted. Tlie cause was tried, on the general issue, pleaded b}- the defendants severally, at Fairfield, April adjourned term, 1844, before Storrs, J. The plaintiff claimed title to the property- described in the declaration, by virtue of a bill of sale thereof, made and delivered to him, in the city of New York, on the 3d of November, 1842, at half past 9 o'clock, a. ji., by Esbon Ilusted, of Greenwich, in this State. The plaintiff claimed to have proved, that the propert}- was then in the actual possession of Husted, in Greenwich; and that lie, the plaintiff, imraediatel}' on receiving tlie bill of sale, proceeded from the citj' of New York to Greenwich, for the purpose of taking possession of the propert}', and aiTived there at about 4 o'clock p. m. ; that the consideration of the bill of* sale consisted of the indebtedness of Husted to the plaintiff' for about 750 dollars, and the verbal promise of the plaintiff then made to Husted, tiiat he, the plaintiff, would assume upon himself the payment of a certain promissory' note, which Husted owed to the Mechanics and Tiadors' Bank in the cit}- of New York, which had not then arrived at maturity, and which was indorsed by the plaintiff, for Husted's accom- 1 Gill V. Frank, 12 Ore. 507, ace. See also Freiberg v. Steenbock, 54 Minn. 509; Whit- ney V. Lj-nde, 16 Vt. 579; Hildreth v. Fi«, 53 Vt. G84. Conf. Gibson v. Stevens, 8 How. 384. In Huschle v. Morris, 131 111. 587, 593, Mr. Justice Bailey, in delivering the opin- ion of the court, said: " In case of an unconditional sale of specific chattels, delivery is not essential to complete the sale and pass the title as between the parties, where, by the agree- ment, nothing remains to be done but for the purchaser to take possession. But as to creditors and bona fide purchasers the rule is different, as a delivery is indispensable to complete the sale so as to render it valid as against them." See to similar effect. Pollard V. Keardon, 65 Fed. Rep. 848 (C. C. A.); Fairfield Bridge Co. v. Nye, 60 Me. 372; Jones v. Hodgkins, 61 Me. 480; Reed v. Reed, 70 Me. 504; Crawford v. Forristall, 58 N. H. 114; Kirven v. Pinckney, 47 S. C. 229; English Sale of Goods Act, § 25 (1). Conf. Meyerstein V. Barber, L. R. 2 C. P. 38, 51 ; Hamilton v. National Bank, 3 Dill. 2-30, 235; Smith v. Jones, 63 Ark. 232, 238; Meade v. Smith, mpra ; Ricker v. Cross, 5 N. H. 570; Hooben i\ Bid- well, 16 Ohio, 510. SECT. III.] MEADE v. SMITH. 416 modation ; also two other notes, which Husted then owed to Elizabeth Griggs, and another which he owed to E. Fish & Co. It was not claimed by the plaintiff, that he had assumed the payment of these notes, by any agreement or arrangement with the creditors, or that they had ever been consulted at all on the subject, or had any knowl- edge thereof; or that there had been any assumption of said debts, by the plaintiff, otherwise than b}- said verbal agreement with Husted, nor was it claimed b}- the plaintiff, that Husted was in any way discha,rged from said debts, or either of them. The plaintiff, after having given this evidence of his title to the property in question, in order to prove a conversion thereof, by the defendants, first introduced Caleb Husted, as a witness, who testified, that the plaintiff, on the 3d of November, 1842, after his arrival at Greenwich, found the cows, oxen, and (;arts, mentioned in the declara- tion, and them onl}' in the possession of the defendant Husted, which the plaintiff demanded of him, and he refused to deliver them to the plaintiff, and said, they had been put into his possession, bj' the defend- ant Dayton. John Henderson, another witness introduced by the plaintiff, testified to the same facts. The plaintiff next introduced two writs of attachment, in favor of the Seventh Ward Bank, against Esbon Husted, with the returns of the defendant Smith thereon, he being the ofl3cer who served them, by which it appeared, that he, as a deputy sheriff, attached the property \\\ question on said writs on the 3d of November, 1842, at 12 o'clock at noon of that day. The plaintiff then introduced Samuel Close, as a witness, who testi- fied, that on the 3d of November, 1842, or the day following, the plain- tiff demanded of the defendants Smith and Dayton, all the property mentioned in the bill of sale, which they had in their possession, but that none of such pro[)erty was by them delivered to the plaintiff, to the witness's knowledge ; and that he did not hear their answer in reply to the demand. Nathaniel S. Husted, another witness introduced by the plaintiff, testified, that the plaintiff on the 4th of November, 1842, at (Greenwich, demanded said cows, oxen, and carts of the defend- ants Smith and Dayton, informing them that he the plaintiff' had a bill of sale of them from Esbon Husted ; and that neither Smith nor Dayton made anj' reply to the demand, nor delivered the property to the plain- tiff. On cross-examination by the defendants, this witness testified, that said cows, oxen, and carts were in the possession of the defendant Husted, in whose possession they had been put, on the 3d of November, 1842 ; that the defendant Smith had nothing to do with putting them into Husted's possession ; that he, the defendant Smith, had put them into the hands of the witness, as keeper thereof; and that Dayton, who was a constable, afterwards took them, against the proliibition of the wit- ness, from his possession, and i)ut them into the possession of the defendant Husted. It did not appear, that said cows, oxen, and carts, or either of them, 416 MEADE V. SMITfl. [CHAP. III. when the demand was made, as testified to by this witness, were in the uossession of the defendant Smith. The plauitiff did not show, or claim to have shown, any connection between the defendant Smith and tlie defendants Dayton and llusted, in reUition to this property. Tlie evidence thus introduced by the plain- tiff, was, when offered, objected to, by the defendants' counsel, and was received sul)ject to such objection. The defendant Smith justified his acts, on the ground that he was, on the 3d of November, 1842, a deputy-sheriff ; that at noon of that day, and some hours before the plaintiff's arrival at Greenwich, he, as such deput\-sheriff, attached and took into his possession the property de- scribed in the declaration, as the property of Esbon Husted, by virtue of two writs of attachment in favor of the Seventh Ward Bank in the city of New York, against him, brought for the recovery of debts then justly due from him to said bank ; that when the defendant Smith so attached and took into his possession said property, it was all in the possession of Husted, on his farm in Greenwich, the plaintiff not having then taken possession of it under his bill of sale ; and that neither he, Smith, nor the Seventh Ward Bank had then any knowledge that said bill of sale had been given ; nor was this fact, at that time, known, by any person in Greenwich ; nor was it known at Greenwich, until after the plaintiff's arrival there. This was admitted by the plaintiff. It was agreed, that Husted owned all said property, at the time he gave the bill of sale to the plaintiff; and that he had not ceased to be the owner thereof, at the time it was so attached by Smith, otherwise than by the giving of such bill of sale ; that Husted was, at this time, a bankrupt unable to pay all his debts ; and that at the term of the Superior Court in February, 1843, the Seventh Ward Bank recovered judgment in said suits against him, in one for 570 dollars 14 cents damages, and 88 dollars 86 cents costs ; in the other, for 959 dollars 44 cents damages, and 25 dollars 88 cents costs. The plaintiff claimed to have proved, that he attempted to take pos- session of said property within a reasonable time after the delivery of the bill of sale, and used reasonable diligence for that purpose ; but that, before he could obtain possession thereof, it had been attached and taken away, by Smith; and he insisted, that under those circum- stances, he became the owner of said property, by force of the bill of sale, from the time it was delivered to him ; that he was entitled to hold said property, as against Smith, and the attaching creditors ; and that the mere attachment of the property by Smith, at the time and under the circumstances before mentioned, was in itself a conversion thereof; and that for such conversion, without any other act done by Smith, or any demand on him by the plaintiff for the property, he was entitled to recover against Smith. These claims were resisted, by the defendant, Smith, who claimed the reverse thereof. He also claimed, on the argument of the cause, that the plaintiff, by introducing the testimony of Caleb Husted and SECT. III.] MEADE V. SMITH. 417 John Henderson, had elected to go against the defendant, Husted, and had prechided himself from recovering against the defendant, Smith ; and that tlie writs and returns thereon, and the testimony of Saimiel Close and Nathaniel S. Husted, as to a demand and refusal of said property, or any part thereof, should be excluded as evidence of a con- version thereof; and that the attachment of the property by Smith was not in itself a conversion thereof; but that a demand thereof b^^ the plaintiff, and a refusal by Smith, was necessary-. The plaintiff resisted these claims, and claimed the reverse thereof; and each party requested the court to charge the jury in conformity with the claims so by him made. The court did not charge the jury in conformity to the claims of the defendant. Smith, or either of them ; but did charge the jury in con- formity with all the claims of the plaintiff. The jury thereupon returned a verdict for the plaintiff, against the defendant Smith ; and he thereupon moved for a new trial for a mis- direction, and also filed a motion in arrest of judgment. Tlie whole case was reserved for the consideration and advice of this court. Haicley and iJntton, in support of the motions. Bissell and Ferris, contra. Storrs, J. The next and most prominent question,^ made in this case, arises from the circumstance that the plaintiff had not acquired the actual possession of the property in question, under his conveyance from Husted, before the attachment of it, by the defendant, Smith ; the defendant claiming, that, for want of such possession, he, by his attach- ment, obtained a prior title to the plaintiff under his assignment. The defendant having attached the property on behalf of a creditor of Hus- ted, the question as to the title may be considered as one between the plaintitf and said creditors ; and both of them stand in the situation of bona fide purchasers. It being found by the jury, that there was no want of diligence on the part of the plaintiff, in taking possession of the property, and that a reasonable time had not elapsed for that pur- pose, when it was attached by the defendant, the question is, whether, as between two bona fide purchasers of personal property from the owner, tiie last, by first obtaining possession of it, acquires a preferable title over the other. We consider not only that the general principles applicable to this question are well settled, but that the very question itself has been most deliberately decided by the courts of this State, against the claim of the defendant ; and, as we believe, in entire accord- ance with the principles of the common law. AVhatevor therefore we might think of the doctrines which prevail on this subject under the civil law, or other systems of jinisprudence than our own, we are not at liberty to adopt them. It is a most ancient and well-established principle of the common law,. ^ A portion of the case irrelevant to this section has been omitted. 418 MEADE V. SMITH. [CHAP. III. that on a sale of a specific chattel, the bargain or contract between the vendor and vendee passes the property in it to the latter, without de- livery. Glanv. b. 10, ch. 14 ; Clayt. 135 ; Perkins, tit. Grant, § 92 ; Noy's Max. 87, 88 ; Com. Dig. tit. Biens, D. 3 ; Shep. Touchs. 224 ; Martindale v. Bootli, 3 Barn. & Ad. 498 (23 E. C. L. 130) ; Dixon v. Yates, 5 Barn. & Ad. 313 (27 E. C. L. 86) ; Barret v. Pritchard, 2 Pick. 512; Putnam v. Dutch, 8 Mass. R. 287; 2 Kent's Com. lect. 39 ; 2 Steph. Com. 120. Certain exceptions are introduced, bj- the Statute of Frauds, which, as they liave no application to this case (here being a written assignment of the property, and the contract of sale therefore not being obnoxious to any objection under that statute), need not be noticed. Hence it follows, that the title of the purchaser is not, as is claimed by the defendant, merely inchoate and imperfect before a delivery, and that such deliver^' is necessary in order to perfect it, but tliat tliere is a perfect and complete transmutation of the propeity, by tlie mere agreement between the parties. It will be seen hereafter, that there is an essential difference, in this respect, between the com- mon and civil law. No length of possession by the vendor, after the sale, will divest the vendee of the property. It ma}- furnish evidence between them, in certain cases, of a non-acceptance by the vendee, or of an abandonment or re-transfer of the property to the vendor, or the like ; but those cases have no relevancy to the present inquiry, as they stand on grounds not applicable to the case before us. There being, as to the parties, a perfect transfer of the propert}', and a complete transmutation of the title of it to tlie vendee, by the mere agreement, without a delivery, that title will be respected and prevail, as against all other persons claiming under the vendor, unless it is impeached on other grounds than the want of legal effect of such agreement. We come now to the claim of the defendant ; which is, that although, as between the parties to the sale, the proper t}- is altered by the bargain, it is not altered as to subsequent bona fide purchasers and creditors of the vendor, unless there is a delivery of the possession, and consequent!}', without such delivery, remains, as to them, in the vendor. This claim, it will be observed, proceeds on the ground, not that the want of a change of possession furnishes evidence of fraud in the sale, and that but for such fraud the property would pass to the vendee, as against such purchasers and creditors ; but that, as to them, there is no transfer of the property, notwithstanding there be no fraud by reason of such want of possession; in other words, that as to them, ])efore such change of possession, the title of the vendee is merely in- choate and incomplete. It is, therefore, necessary- to ascertain the precise light in which a want of change of possession is viewed, and what consequences are attached to it in our courts. It is obvious, that all the questions which arise on this subject must be between the first vendee and a creditor or subsequent purchaser of the vendor ; and all of the numerous cases on this subject were accord- SECT. III.] MEADE V. SMITH. 419 ingly between such parties. "We look in vain for any such case, in ■which the want of possession by the vendee was, either bj- the counsel or the court, placed on the ground that such possession was necessar}' in order to alter the property, or that the title of the vendee was merel}' inchoate without it, and could be consummated only by it. But the want of delivery to, or of the continuance of possession by, the vendee, which are placed on the same ground, is in no case considered in any other light than as furnisliing evidence of fraud in the sale ; and where, for the want of such delivery or continuance of possession, the sale has been pronounced void, it was only on the ground of such fraud. It is accordingly uniforml}' decided, that a retention of the possession by the vendee, either where there was no possession taken by him, or where, after a formal deliver}' to him, the property has gone back into the pos- session of the vendor, furnishes, in all cases, presumptive evidence that the sale was fraudulent, open however to explanation. This is the plain and intelligible view of the subject taken by our courts, and is also the light in which it is considered elsewhere, where the common law prevails. So far there is an entire uniformity in the decisions and in the elementary writers. 2 Kent's Com. lect. 39 : 1 Sw. Dig. 266, et seq.; Burge's Com. pt. 2, ch. 3. 14 ; Lady Arundel v. Phipps, 10 Ves. jr. 145 ; Latimer v. Batson, 4 Barn. & Cres. 652 (10 E. C. L. 432) ; Marti ndale v. Booth, 8 Barn. & Ad. 498 (23 E. C. L. 130) ; Osborne V. Tuller, 14 Conn. R. 529 ; Bissell v. Hopkins, 3 Cowen, 166 ; Randall V. Cook, 17 Wend. 53. The language of the courts in this State, on this subject, is usually guarded and precise ; and they speak of a non-deliverj-, or retention of possession by a vendor, onl}' as creating a presumption of fraud, con- clusive when unexplained, and never as a circumstance which renders the sale merely inchoate, either as to the vendor or a subsequent pur- chaser or creditor. Patten v. Smith, 4 Conn. R. 450 ; s. c. 5 Conn. R. 196; Burrows v. Stoddard, 3 Conn. R. 160, 431 ; Toby v. Reed, 9 Conn. R. 216 ; Osborne v. Tuller, 14 Conn. R. 529. But as to what shall be considered a sufficient explanation to rebut such presumption, there has been a great contrariety of opinion ; and it is here that the difficulty has existed ; it being held, in some places, that it would be rebutted, by showing the good faith of the transaction, and in others (including this State), that the explanation must go further, and be such as the law approves. 2 Kent's Com. lect. 39 ; Osborne r. Tuller, 14 Conn. R. 529, and cases cited. It would be foreign from our present inquiry to enumerate all those cases in which it has been held, by our courts, that the explanation furnished by the vendee for a want of possession by him, was sufficient to rebut the pre- sumption of fraud. Such explanation, however, has, in all of them, been deemed sufficient for that purpose, liecause the circumstances con« stituting it ropel the legal inference of fraud, which would otherwise prevail ; and it thus gets rid of tliat objection, which is the only one growing out of the want of [)ossession. In one class of those cases, a 420 MEADE V. SMITH. [CHAP. IIL cliange of possession was practicable ; as, for instance, where tlie prop- erty was exempt from attachment or execution, or where the assignment was in trust for creditors under the Act of 1828, and the trustee had furnished the security required by tliat act. 4 Conn. R. 450 ; 14 Conn. R. 529. No inference, under these circumstances, could fairly be drawn, that a fraud on the creditors of the vendor was designed. But there is anotlier class where it was not practicable for the purchaser to take immediate possession of the property ; and that is the case now before us ; in such cases, it is held, that a sufficient legal explanation of such want of possession is thereby furnished, and that it is sufficient if possession is taken in a reasonable time. In other words, the pre- sumption of fraud is repelled, b}' the fact that it was not practicable for the vendee to take possession immediately, but that he did so in a rea- sonable time, which is considered due diligence on his part; as, for instance, in the case of a ship at sea, or other property afloat, where it is sufficient that possession of them be taken as soon as reasonably prac- ticable after their arrival. This principle was directly established in Ingraham v. Wheeler, 6 Conn. R. 277. That was a case between a bofia fide purchaser of goods on land and an attaching creditor of the vendor, who had possession of the goods as bailiff of the vendor, at the time of the attachment of them hy him, but who then had no notice of the assignment ; which would have constituted him the bailee of the purchaser, and be equivalent to taking possession by the latter ; and the jury found, that there had been no unreasonable delay, on the part of the purchaser, in claiming the j)ropert3'. The court decided in favor of the purchaser. The}' say: "A purchaser is bound, in every in- stance where it is practicable, to take immediate possession of the property ; and when he does not, there is a badge of fraud, open how- ever to explanation. AVhere it is not practicable to take immediate possession, he is bound to do it, or that which is equivalent, in a rea- sonable time ; he is bound to use due diligence. After the execution of the said deed of assignment, the plaintiffs were entitled to reason- able time, either to give notice of the fact to the bailiff, or to take possession of the property. And whether the}' did use this diligence, or whether they were so remiss that fraud ought to be inferred, were ques- tions of fact ver}' properly left by the judge to the jury." This case, being in point, is decisive of this question. See also 4 Mass. R. 183, 5.35; 1 Pet. 449; 4 Mass. R. 661; 6 Mass. R. 422; 1 Gallis. 419; 8 Mass. R. 287 ; 5 N; Hamp. R. 570. The case of Lanfear v. Sumner, 17 INIass. R. 110, has been relied on, by the defendant, and is in point in his favor. Respecting that case, it ma}' be first remarked, that it passed under the consideration of this court in Ingraham et al. v. Wheeler, and was pronounced not to be in accordance with the doctrine that had prevailed in this State. That case was also disapproved, in Ricker v. Cross, 5 N. Hamp. R. 570. In the next place, it is clearly unsupported by the case of Caldwell et al. V. Ball, 1 T. R. 205, which is the only common-law authority relied oa SECT. III.] MEADE V. SMITH. 421 B}- a reference to that case, it appears that the question was as to the legal title of the property in dispute, irrespective of the fact of posses- sion, it not being in the actual possession of either of the claimants ; and the only point decided was, that where there were several bills of lading for goods, signed at different times, by the captain of a ship, which were subsequenth' indorsed and delivered, by the shipper, to different persons, no reference was to be had to the time when the bills of lading were signed by the captain, but that the person who first gets one of them, by a legal title, from the shipper, had a right to the prop- erty consigned ; that an indorsement of a bill of lading, created such legal title ; and therefore, that the claimant under the one first in- dorsed, though last signed, should hold the property in preference to the other. That case turned merely on the operation of an indorse- ment of a bill of lading, which was held to constitute a transfer of the property. In the last place, all the other citations in Lanfear v. Sum- ner are from the civil law ; and they undoubtedly support that case. It is however very clear, that on the subject of a sale and transfer of personal property, there is a fundamental difference between the common and civil law as to the necessity of a delivery of the thing sold. By the latter, the contract of sale, although perfect and complete, had not the effect of transferring to the purchaser the property or dominium in the thing sold, without a delivery of it to him. (1) It did not effect a transmutation of the property, nor give to the pui'chaser the thing itself, nor a right in it, jus in re, but only a right to it, jus ad rem,, that is, the right of demanding it, by action against the vendor. It was the delivery only, wliich operated a transfer of the dominium, or the right of property. Hence the property, when the sale of it was per- fected, by the contract or consent of the parties, was not said to be alienated. (2) For the purpose of compelling a delivery of it, the actio empti is given to the vendee. (3) The principle that the prop- ert}- or dominiimi could only be transferred by deliver}', and not bj' contract, was steadily and rigorously adhered to, in the Roman law. It is the nature of contracts or obligations, says Paul, to bind the person, but not to operate a transfer of property. Tins principle was adopted in the law of Holland, (4) of Spain, (5) and of Scotland; (6) and also in the law of France, before the establishment of the Code Civil. (7) As a necessary consequence of that principle, it was held, where •it prevailed, that the vendor noay, while he retains possession, sell the thing to a second purchaser, and if this sale is followed by the delivery, it gives the latter a complete and indefeasible title to the propcrt}" ; (8) or the creditors of tlic vendor may seize the thing in the possession of the vendor, before delivery to the vendee, although the price has been paid, and the vendee, not having acquired any property or inter- est in the thing by his contract, cannot pursue it in his hands, but is left solely to his action for damages against the vendor, (9) So strictly was this principle adhered to, that if the vendor died before a dehvery of the thing to the purchaser, having bequeathed it as a legacy, the 422 PATERSOX V. TASK. [CHAP. III. legatee was entitled to receive it, and the onl}' remedy of tlie purchaser was an action against tlie heir of the A'endor for the recover}' of dam- ages. (10) By the Code Civil, however, the Roman law is so far altered, that the contract of sale has the elfect of transferring to the purchaser the property in the thing sold, as between the parties to the contract, and the sale is perfected by the consent of the parties, as evinced by that contract ; although it still leaves the rights of the creditors to be protected by the old rule. (11) (1) Cod. 2, 3, 20; Dig. 44, 7, 3. (2) Dig. 50, 16, 67. (8) Dig. 19, 1. (4) Matth. de Auct. 1, 18, 15 ; Voet, 6, 1, 20. (5) Gomez, Res. c. 2, n. 32, 1. 29, 30; tit. 5, pt. 5, Feb. 2, 4, 2, 32. (G) Stair, b. 1, tit. 14, § 2; Ersk. b. 1, tit. 3, § 2. (7) Poth. Tr. de Vente, n. 319. (8) Dig. 6, 2, 9 ; Cod. 3, 32, 15. (9) Matth. 1, 18, 15. (10) Dig. 19, 2, 32. (11) Art. 1583, 711, 1583, 2279 ; Toull. liv. 3, t. 3, n. 36. We are of opinion, that under the peculiar circumstances of this case, it was not the duty of the court below to exclude the evidence offered b}' the plaintilT, to prove a conversion by the defendant. Smith. After an ineffectual attempt to show such a connection between him and the other original defendants as would affect him, by the demand and refusal proved, it was competent for the plaintiff to waive it and pro- ceed against Smith alone, which he did, on the first opportunit}'. Tlie rule relied on by the defendant is mainly one of practice, and in order to do perfect justice, must be applied under the discretion of the court. While, on the one hand, the plaintiff should not be allowed to vary his proof capriciousl}', in order to speculate on the evidence, he should not, on the other, be too strictly held, by a sudden and unexpected failure in his proof, to support the whole of his claim. Without detailing the facts on this part of the case, we think, that the ends of justice were promoted by the course taken on the trial. For these reasons, a new trial ought not to be granted. In this opinion the other Judges concurred. JVeiv trial not to be granted. SECTION IV. Factors and Factors Acts. PATERSON V. TASH. In the King's Bench, Hilary Term, 1743. [Beported in 2 Sirange, 1178.] It was held by C. J. Lee, that though a factor has power to se'l, and thereby bind his principal, yet he cannot bind or affect the prop- erty of the goods by pledging them as a security for his own debt, though there is the formality of a bill of parcels and a receipt. A7id the Jury foicnd accordingly. SECT. IV.J PICKEKIXG V. BUSK. 423 WILKINSON V. KING. At Nisi Prius, December 21, 1809. [Reported in 2 Campbell, 335.] Tbover for a quantity- of lead. The plaintiff had sent the lead in question to the wharf of one Ellil in the Borough of Southwark, there to remain till it should be sold. Ellil was accustomed to sell lead from this wharf; but had no author- ity whatever to sell the lead in question, and never had sold any for the plaintiff before. However, he sold this lead to the defendants, who bought it bona fide as his propert}-, and paid him for it by a bill of exchange. Lord Ellenborough held that the sale by Ellil did not change the property- in the lead, and observed that the doctrine contended for would give wharfingers the dominion over all the goods intrusted to them ; but that a wharf could not be considered, even in London, as a market overt for the articles brought there. Ellil had no color of authority to sell the lead, and no one could derive a good title to it under such a tortious conversion. Verdict for the plaintiff. The Attorney- General^ Park^ and Bkhardson, for the plaintiff. Garrow^ Gaselee, and Barnewcdl, for the defendants. PICKERING V. BUSK. In the King's Bench, January 27, 1812. [Reported in 15 East, 38.] Trover for hemp. At the trial before Lord Ellenborough, C. J., at the sittings after Trinity Term in London, it appeared that Swallow, a broker in London, engaged in the hemp trade, had purchased for the plaintiff, a merchant at Hull, a parcel of hemp then lying at Symonds' wharf in Southwark. The hemp was delivered to Swallow, at the desire of the plaintiff, by a transfer in the books of tlie wharfinger from the name of the seller to that of Swallow. Shortly afterwards Swallow purchased for the plaintiff another parcel of hemp, lying at Brown's quay, "Wapping, which latter parcel was transferred into the names of Pickering (the plaintiff), or Swallow. Both these parcels of hemp were duly paid for by the plaintiff. Swallow, however, whilst tlie hemp re- mained thus in his name, having contracted with Hayward & Co., as the broker of Blackburn & Co., for the sale of hemp, and having none of his own to deliver, transferred into the names of Hayward & Co., 424 PICKERING v. BUSK. [CIIAP. III. the above parcels in satisfaction of that contract, for which they paid him the vaUie. Ilayward & Co. shortly after became bankrupts ; and the phiintitf, discovering these circumstances, demanded tlie hemp of tlie defendants their assignees, and upon their refusal to deliver it the present action was brought. His Lordsliip was of opinion upon this evidence, that the transfer of tlie hemp, by direction of the plaintiff, into Swallow's name, authorized him to deal with it as owner, with respect to third persons ; and that the plaintiff, who had thus enabled him to assume the appearance of ownership to the world, must abide the consequence of his own act. A verdict was thereupon found for the defendants, with liberty to the plaintiff to move to set it aside. Garrou\- Topping, and Taddy, now showed cause. The Attorney- General, Park, and Abbott, contra. Lord POLLEN BOKOUGii, C. J. It cannot fairlj' be questioned in this case but tliat Swallow had an implied authority to sell. Strangers can only look to the acts of the parties, and to the external indicia of prop- ert}', and not to the private communications which may pass between a principal and his broker ; and if a person authorize another to assume the apparent right of disposing of property in the ordinar}' course of trade, it must be presumed that the apparent authority is the real au- thority. I cannot subscribe to the doctrine, that a broker's engage- ments are necessarily and in all cases limited to his actual authorit}', the reality of wliich is afterwards to be tried by the fact. It is clear tliat he ma}' bind his principal within the limits of the authority with which he has been apparently clothed by the principal in respect of the subject-matter ; and there would be no safety in mercantile transactions if he could not. If the principal send his commodity to a place, where it is the ordinary business of the person to whom it is confided to sell, it must be intended that the commodity was sent thither for the pur- pose of sale. If the owner of a horse send it to a repositorj- of sale, can it be implied that he sent it thither for any other purpose than that of sale? Or if one send goods to an auction-room, can it be supposed that he sent tliem thither merely for safe custody? Where the com- modity is sent in such a wa}' and to such a place as to exhibit an ap- parent purpose of sale, the principal will be bound, and the purchaser safe. The case of a factor not being able to pledge the goods of his principal confided to him for sale, though clothed with an apparent ownership, has been pressed upon us in the argument, and consider- ably distressed our decision. Tlie court, however, will decide that question when it arises, consistentlv with the principle on which the present decision is founded. It was a hard doctrine when the pawnee was told that the pledger of the goods had no authority to pledge them, being a mere factor for sale ; and yet since the case of Paterson v. Tash, tliat doctrine has never been overturned. I remember Mr. Wallace arguing in Campbell v. Wright, 4 Burr. 2046, that the bills of lading ought to designate the consignee as factor, otherwise it was but just that the consignors should abide by the consequence of having misled the SECT. IV.] PICKERING V. BUSK. 425 pawnees. The present case, however, is not the ease of a pawn, but that of a sale by a broker having the possession for the purpose of sale. The sale was made by a person who had all the indicia of property ; the hemp could only have been transferred into his name for the pur- pose of sale ; and the party who has so transferred it cannot now rescind the contract. If the plaintiff liad intended to retain the do- minion over the hemp, he should have placed it in the wharfinger's books in his own name. Grose, J. The question, whether the plaintiff is bound by the act of Swallow, depends upon the authority which Swallow had. This being a mercantile transaction, the jur^- were most competent to decide it; and if I had entertained any doubt, I should rather have referred the question to them for their determination ; but I am perfectly satisfied : I think Swallow had a power to sell. Le Blanc, J. The law is clearly laid down, that the mere possession of personal propert}' does not convey a title to dispose of it ; and, which is equally clear, that the possession of a factor or broker does not authorize him to pledge. But this is a case of sale. The question then is whether Swallow had an authority to sell. To decide this, let us look at the situation of the parties. Swallow was a general seller of hemp ; the hemp in question was left in the custody of the wharfingers, part in the name of Swallow, and part in the name of the plaintiff or Swallow, which is the same thing. Now for what purpose could the plaintiff leave it in the name of Swallow, but that Swallow might dis- pose of it in his ordinar}' business as broker ; if so, the broker having sold the hemp, the principal is bound. This is distinguishable from all the eases where goods are left in the custody of persons whose proper business it is not to sell. Bayley, J. It may be admitted that the plaintiff did not give Swal- low any express authority to sell ; but an implied authority may be given ; and if a person put goods into the custody' of another, whose common business it is to sell, without limiting his authority, he thereby confers an implied authority upon him to sell them. Swallow was in the habit of buying and selling hemp for others, concealing their names. And now the plaintiff claims a liberty to rescind the contract, because no express authority was given to Swallow to sell. But is it competent to him so to do? If the servant of a horse-dealer with express direc- tions not to warrant, do warrant, the master is bound ; because the ser- vant, having a general authority to sell, is in a condition to warrant, and the master has not notified to the world that the general authority is circumscriljed. This case does not proceed on the ground of a sale in market overt, but it proceeds on the principle that, the plaintiff having given Swallow an authority to sell, he is not at liberty after- wards, when there has been a sale, to deny the authority. liule discharr/cd. 426 HENDERSON V. WILLIAMS. [CHAP. III. HENDERSON & CO. v. WILLIAMS. In the Court of Appeal, December 14, 19, 1894. [Repoi-ted in [1895] 1 Queen's Bench, 521.] Ix tliis case appeals were brought by the plaintiffs and the de- fendant against a judgment of Cave, J., without a jury. The action Avas for damages for the wrongful detention or conversion of 150 bags of sugar. The defendant by his defence denied that the sugar was the property of the plaintiffs. The facts were as follows. The plain- tiffs were sugar merchants of Hull. The defendant was a warehouse- man carrying on business at Hull and Goole. On June 3, 1894, one Fletcher, by pretending that he was Robinson, negotiated a purchase of 150 bags R. A. V. sugar from Messrs. Grey & Co., sugar merchants, of Liverpool, they believing that they were dealing with Robinson, a well-known customer of theirs, through Fletcher as his agent. On June 6 Grey & Co. sent to the defendant, who then held the 150 bags of sugar in a warehouse at Goole, the following telegram: "Transfer to order of Fletcher, Leeds, 150 R. A. V." The defendant replied on the same day by a letter, in which, after referring to some other sugar, he proceeded : " I have your telegram to transfer the balance (150 bags) to Mr. W. Fletcher, of Leeds, at whose disposal I have placed the sugar. Please note." On the same day, and before the receipt of this letter. Grey & Co. wrote to the defendant, with reference to these 150 bags of sugar, as follows : " Please hold these to the order of Mr. W. Fletcher, Leeds, and accept his instructions for delivery. Freight and landing charges to our account." Fletcher, having committed this fraud upon Grey & Co., then negotiated with the plaintiffs to sell the sugar to them, together with some other sugar which was in the defendant's ware- house, for cash. At this time Fletcher was indebted to the plaintiffs in the sum of 131Z., for which he had given a cheque which had been dishonored ; and, as Fletclier required to be paid for the sugar in cash, the plaintiffs, before concluding any contract with him, sent down to the defendant to ascertain if the sugar proposed to be sold to them by Fletcher was in his warehouse to Fletcher's order. The defendant sent back to the plaintiffs the following document, signed by him : "Memorandum. J. L. Williams to Messrs. Henderson & Co., Hull. June 7, 1894. R. A. V. 150 bags of sugar. G. R. 36 bags of sugar. Star 50 bags of sugar, lying at Goole. I hold the above on account of W. W. Fletcher, Leeds, and will deliver same to your order on re- ceipt of his transfer in your favor." The plaintiffs were not satisfied with this document, and again communicated with the defendant, who then wrote across the above-mentioned memorandum as follows : " I SECT. IV.] HENDERSON V. WILLIAMS. 427 hold the within at your order and disposal." Thereupon the plain- tiffs purchased the sugar mentioned in the memorandum from Fletcher at the price of 301/. 7s. 5d. The plaintiffs deducted from the price of the sugar the sum of 131/. 16s. for returned cheque and expenses, and also a further small sum of 11. 15s. 6d. (as to which no question arose), in respect of some pre- vious transaction, and handed to Fletcher a cheque for the balance, 167/. 15s. lid., which he cashed in due course. Grey & Co. having discovered Fletcher's fraud upon them, induced the defendant to de- tain the 150 bags, and indemnified him for so doing. The defendant accordingly refused to deliver these 150 bags to the plaintiffs, but he delivered to them the 36 and the 50 bags (which were of the value of 100/.), to Avhich Grey & Co. made no claim. Cave, J., held that the defendant could not set up the title of Grey & Co. against the plaintiffs ; but witli regard to the measure of dam- ages, he held that the plaintiffs were only entitled to the money which they had in their pockets before the sale — namely, 167/., less 100/. the value of the sugar which was not in dispute, treating Fletcher's indebtedness for this purpose as of no value, and he accordingly gave Jfidgment for the plaintiffs for 67/. The plaintiffs appealed against the latter part of this judgment, and asked for judgment for the market value of the goods, which was agreed at 216/. 12s. 6d. The defendant appealed against the whole of the judgment. Forbes, Q. C, and Lacey Smith {Scott Fox with them), for the plain- tiffs. Pickford, Q. C, and T. WUles Chlttij, for the defendant. LiNDLEY, L. J. In this case a Liverpool sugar merchant named Grey had 150 bags of sugar belonging to him warehoused in his name in the defendant's warehouse at Goole. On June 6, 1894, Grey was induced by the fraud of one Fletcher to authorize the defendant to hold these bags of sugar according to Fletcher's order. On the same day Fletcher agreed to sell them to the plaintiff's ; but before the ])laintiffs paid him for them they insisted on having them transferred into their own name. This was done on June 7, and the defendant informed the plaintiffs tliat he held the sugar at the plaintiffs' order and disposal. Thereupon the plaintiffs paid Fletcher for the goods. Grey afterwards discovered that he had been defrauded, and he gave notice to the defendant not to part with the bags of sugar. The de- fendant, being indemnified by Grey, has refused to deliver them to the plaintiffs, whereupon they bring tliis action to recover their value. The defendant defends this action for and on behalf of Grey. Cave, J., has decided that the plaintiffs are entitled to recover damages for the non-delivery of the sugar. For reasons, however, which he gave he refused to allow the plaintiffs the market value of the sugar. Hence the plaintiffs have appealed, and they contend that they are entitled to the market value of the sugar. The defendant has also appealed, upon the ground that the plaintiffs were not entitled to the 428 HENDERSON V. WILLIAMS. [CIIAP. III. sugar. It will be convenient to dispose of tlie defendant's appeal first. He contends — (1.) that he is 'not estopped from setting up Grey's title ; and (2.) that his title is better than that of the plain- tiffs. I am of opinion that the defendant is wrong upon the first point, even if he is right on the second. The distinct attornment by the defendant to the plaintiffs on June 7, 1894, clearly, in my opinion, estopped the defendant from denying the plaintiffs' title. The cases cited by Mr. Forbes, beginning with vStonard v. Dunkin ^ and ending with Knights v. Wiffen,'^ are conclusive on this point, and any other decision would be most mischievous in a business point of view. Mr. Pickford, in his very able argument for the defendant, urged that Attenborough v. London and St. Katharine's Dock Co.^ was an au- thority to show that there was no estoppel in this case. But there the defendants had not attorned to the plaintiffs, and the attornment makes all the difference. With respect to the second point there is more difficulty. If there were no estoppel, and the Court had to de- cide whether Grey or the plaintiffs had the better title to these 150 bags of sugar, my judgment would be in favor of the plaintiffs, if it were not for the case of Kingsford v. Merry.* The case stands thus : Grey authorized the defendant, his agent, to hold the sugar to Fletcher's order, and, before that authority was revoked, the defend- ant acted upon it, and transferred the sugar to the plaintiffs, who are bona fide purchasers of it for value from Fletcher, without notice of anything wrong. It seems to me that, whether Fletcher was the owner of the goods or not, still, as he was expressly* authorized to dispose of them, it would be contrary to principle to hold that Grey could recover the sugar from the plaintiffs. But Mr. Pickford cited Kingsford v. Merry * to show that Grey could do so. I have looked carefully through the report of that case. An order was there given by the plaintiffs to their warehouseman in substance like the order given by Grey to the defendant on June 6 in this case. I understand that this order comprised the goods sued for. I also understand that this order was acted upon by the warehouseman before it was revoked, just as was the case here. He had transferred the goods into the name of the defendant, who was a bona fide pledgee for value from the person whose orders were to be obeyed. The decision of the Court was, nevertheless, in the plaintiffs' favor, on the ground that no property passed from the plaintiffs to the person to whom they gave the delivery order, and that, no property having passed to him, he could confer none on the defendant. The case was treated as if it were the case of a sale of goods by a person who had obtained pos- session of them by false pretences. Such a person, having no title, can confer none, except by sale in market overt : see Cundy v. Lind- say." I confess I find great difficulty in distinguishing the facts of Kingsford v. Merry '' from the facts of this case, although I think too 1 2 Camp. 344. 2 Law Rep. 5 Q. B. 660. 8 3 C. P. D. 450. 4 1 H. & N. 503. 6 1 H. & N. 503. 6 3 App. Cas. 459. 7 1 H. & N. 503. SECT. IV.] HENDERSON V. WILLIAMS. 429 little attention was paid to the authority given and acted upon before it was revoked. But perhaps the order to which I have referred did not include the goods sued for. On the ground, however, of estoppel by attornment the defendant's appeal must be dismissed with costs. As regards the damages, I am imable to adopt the view taken by Cave, J. The value of the 150 bags of sugar was 2151. Fletcher sold to the plaintiffs other sugars, and the price of the whole came to a little over 300^. Fletcher was indebted to the plaintiffs on other transactions, and they held a dishonored cheque of his. Instead, therefore, of paying Fletcher 300^. odd, the plaintiffs deducted the amount of the dishonored cheque and paid Fletcher the balance — 167/. odd. Cave, J., has deducted the price of the other sugars from this sum, and has given the plaintiffs only 67L But, if he went into these calculations at all, he should have deducted the price of the other sugars from the 300Z. odd, and not from the 167/. odd. If this had been done the judgment would have been for 200/. odd, and the plaintiffs would, no doubt, have been satisfied. In my opinion, how- ever, the defendant being estopped from denying the plaintiffs' title, this action ought to be treated as an action to recover the value of goods belonging to the plaintiffs. The ordinary rule ought, therefore, to be adopted, and the proper measure of damages is the market value of the 150 bags of sugar at the time of their wrongful conversion by the defendant. This value is 215/., and the judgment ought to be for this sum, and the plaintiffs must have the costs of their appeal. Defendanfs appeal dismissed ; plaintiffs^ cross- appeal allowed} 1 Lord Halsbury and A. L. Smith, L. J., delivered concurring opinions. Conf. An- derson f. Read, 106 N. Y. 333; Hollius v. Hubbard, 165 N. Y. 534. 430 FARQUHARSON V. KING [CHAP. III. FAEQUHAESON BEOTHEES & CO., Appellants, v. C. KING & CO., Eespondents. In the House of Lords, June 17, 1902. \_Reported in [1902] Appeal Cases, 325.] The appellants were timber merchants and warehoused in the Surrey Commercial Docks the timber which they imported. In 1895 they wrote to the secretary of the dock company : " We have made arrangements whereby in future Mr. Capon will sign delivery orders on behalf of and in addition to the other members of the firm, and inclose our written authority for same." The inclosed authority ran thus : " We hereby authorize you to accept all transfer or delivery orders Avhich shall be signed on our behalf by Mr. H. J. Capon, whose signature is subjoined, the company acting also on our signature as before. This authority is to remain in force until expressly revoked in writing by us." Capon was a confidential clerk of the appellants Avho had authority to sell to certain recognized customers of the appel- lants timber at prices and up to limits fixed by the appellants, and occasionally to make other sales. In 1896 Capon began a series of frauds. He obtained an address at Battersea under the name of Brown, and from that address and under that name offered to sell and sold to the respondents, who were pack- ing-ease manufacturers, parcels of the appellants' timber and appro- priated the proceeds. In these sales he represented himself as a commission agent acting on behalf of Messrs. Bayley, fire-escape makers. He carried out the sales by signing orders in his own name to the dock company to transfer or deliver timber to the order of Brown, the timber being transferred in the dock company's books into the name of Brown. Tlien in the name of Brown he signed orders to the dock company to transfer or deliver the timber to the order of the respondents. In the appellants' stock-books Capon made alterations and false entries of fictitious sales so as to account for the diminution of stock. The respondents knew nothing of the appel- lants, and nothing of Capon except under the name of Brown. They bought in good faith in ignorance of the frauds. The frauds having been discovered in 1900, the appellants brought an action against the respondents claiming delivery of the timber or its value. The action was tried before Mathew, J., who left to the jury the question, Did the plaintiffs so act as to hold Capon out to the defendants as their agent to sell goods to the defendants ? The jury answered, No. The learned judge refused to put to the jury a question pressed upon him by the defendants' counsel, namely, whether the plaintiffs had by their conduct enabled Capon to hold himself out as owner of the SECT. IV.] FARQUHAESON V. KING. 431 goods or as entitled to sell them. Upon the finding of the jury Mathew, J., entered judgment for the plaintiffs for 1200^. The Court of Appeal (A. L. Smith, M. R., and Vanghan Williams, L. J., Stirling, L. J., dissenting) reversed that decision and entered judgment for the defendants.^ Against this decision the present appeal was brought. Asquith, K. C, and Danckwerts, K. C. ( W. Whatehj with them), for the appellants. Latvson Walton, K. C, and Cababe, for the respondents. Lord Lindley. My Lords, I also think this case is extremely plain when it is understood. Capon sold the plaintiffs' timber without their authority, and sold it to the defendants. The defendants honestly bought the timber, and they had no notice that Capon had no right to sell it ; but there was no sale in market overt, and the Factors Acts do not apply. The mere fact, therefore, that the defendants acted honestly does not confer upon them a good title as against the plaintiffs, the real own- ers of the timber. The plaintiffs are entitled to recover the timber or its value, unless they are precluded by their conduct from denying Capon's authority to sell. (Sale of Goods Act, 1893, s. 21, and see s. 61.) Capon sold under the name of Brown, representing himself to be an agent of some persons named Bayley, who were well known in the timber trade. Tlie defendants bought on the faith of his being what he pretended to be. What have the plaintiffs done which pre- cludes them from denying, as against the defendants. Capon's right to do what he pretended he was entitled to do ? Putting the ques- tion in another form : What have the plaintiffs done to preclude them from denying, as against the defendants, Capon's right to sell to them ? To answer those questions it is necessary to consider what the plaintiffs did. Capon was the plaintiffs' confidential clerk ; they gave him a limited power of sale to certain customers, and a general written authority to sign delivery orders on their behalf; and the plaintiffs sent that written authority to the dock company which stored the plaintiffs' timber. This authority would, of course, protect the dock company in delivering timber as ordered by Capon, liowever fraudulently he might be acting, if the dock company had no notice of anything wrong. By abusiiig his authority Capon made timber belonging to the plaintiffs deliverable by the dock company to himself under the name of Brown. In that name he sold it, and procured it to be de- livered to tlie defendants. What is there here which precludes the plaintiffs from denying Capon's right to sell to the defendants? What have the plaintiffs done to mislead the defendants and to induce them to trust Capon ? Absolutely'nothing. The question for decision ought to be narrowed in this way, for it is in my ojunion clear that, when s. 21 of the Sale of Goods Act has to be applied to a particular case, the inquiry which has to be made is not a general 1 [1901] 2 K. B. 697. 432 FARQUHARSON V. KING. [CHAP. III. inquiry as to the authority to sell, apart from all reference to the particular case, but an inquiry into the real or apparent authority of the seller to do that which the defendants say induced them to buy. It was pointed out by Parke, J., afterwards Lord Wensleydale, in Dickinson v. Valpy,^ that "holding out to the world" is a loose expression; the "holding out" must be to the particular individual who says he relied on it, or under such circumstances of publicity as to justify the inference that he knew of it and acted upon it. The same principle must be borne in mind in dealing with cases like the present. I do not myself see upon what ground a person can be precluded from denying as against another an authority which has never been given in fact, and which the other has never supposed to exist. It was urged that the dock company were led by the plaintiffs to obey Capon's orders and to deliver to Brown, and that the defendants were induced by the dock company to deal with Brown, or at all events to pay him on the faith of his being entitled to the timber ; so that in fact the plaintiffs, through the dock company, misled the de- fendants. This is ingenious, but unsound. Except that delivery orders were sent in the name of Brown to the defendants, and were acted on by the dock company, there is no evidence connecting the dock company with the defendants in these transactions ; and the answer to the contention is that the defendants were misled, not by what the plaintiffs did, nor by what the plaintiffs authorized the dock company to do, but by Capon's frauds. It is, of course, true that by employing Capon and trusting him as they did the plaintiffs enabled him to transfer the timber to any one ; in other words, the plaintiffs in one sense enabled him to cheat both themselves and others. In that sense, every one who has a servant enables him to steal whatever is within his reach. But if the word " enable " is used in this wide sense, it is clearly untrue to say, as Ashhurst, J., said in Lickbarrow v. Mason,^ " that wherever one of two innocent persons must suffer by the acts of a third, he who has enabled such third person to occasion the loss must sustain it." Such a doctrine is far too wide ; and the cases referred to in the argument and commented on by Van gh an Williams, L. J., show that it cannot be relied upon without considerable qualification. Lamb v. Attenborough,' which is very like this, is a good illus- tration of the unsoundness of the doctrine in question if taken lit- erally. Johnson v. Credit Lyonnais Co.* is another illustration to the like effect. So far as I know, the doctrine has never been judi- cially applied where nothing has been done by one of the innocent parties which has in fact misled the other: see Story on Agency, s. 133. In Vickers v. Hertz * the defendant acted on the faith of a document 1 (1829) 10 B. & C. at p. 140; 34 R. R. 355. 2 (1787) 2 T. R. 63 ; 1 R. R. 425. » 1 B. & S. 831. 4 3 C. P. D. 32. 6 L. R. 2 H. L. Sc. 113. SECT. IV.] FARQUHARSON V. KING. 433 signed by the plaintiff. So in Babcock v. Lawson.^ In Brocklesby V. Temperance Building Society ^ the bank advanced money on the faith of the document signed by the plaintiff, and the defendants who had paid off the bank were entitled to the benefit of the bank's security. In Henderson v. Williams ^ the defendant acted on orders given by the owner of the goods ; the action was defended on his behalf, and he had intrusted the goods to Fletcher, to whom the defendant had attorned. These cases do not really assist the defendants. ISTor does Dyer v. Pearson.* In the present case, in my view of it, Capon simply stole the plain- tiffs' goods and sold them to the defendants, and the defendants' title is not improved by the circumstance that the theft was the result of an ingenious fraud on the plaintiffs and on the defendants alike. The defendants were not in any way misled by any act of the plaintiffs on which they placed reliance ; and the plaintiffs are not, therefore, precluded from denying Capon's authority to sell. The question which the defendants pressed Matliew, J., to leave to the jury, and which the late Master of the Rolls and Vaughan Wil- liams, L. J., thought ought to have been left to them, — namely, " Did the plaintiffs by their conduct enable Capon to hold himself out as the owner of the goods or as having the power to dispose of them ? " — would, in my opinion, have been seriously misleading unless ac- companied by explanations which would have taken out of it the ele- ment of error introduced by the word " enable." I feel very strongly the observation that if the defendants are right the Factors Acts would never have been wanted. In my opinion, Mathew, J., was quite right in leaving to the jury the question as he framed it: "Did the plaintiffs so act as to hold Capon out to the defendants as their agent to sell goods to the defendants ? " The verdict is unimpeachable, and it is fatal to the defendants. The appeal ought to be allowed with costs both here and below. Order of the Court of Appeal reversed and judg- ment of Mathew, J., restored with costs here and heloio.^ 14Q. B. D. 394. 2 [1895] A. C. 173. 8 []895] 1 Q. B. 521. 4 3 B. & C. 38 ; 27 R. R. 286. 6 The Earl of Halsbury and Lords Macnaghten, Siiand, and Robertson delivered concurring opinions. -^34 ENGLISH STATUTES. [CHAP. III. 4 GEORGE IV., Cap. 83. An Act for the better Protection of the Property of Merchants arid others, who may here- after enter into Contracts or Agreements in relation to Goods, Wares or Merchandizes intrusted to Factors or Agents. " AVhereas it has beeu found that the Law, as it now stands, relating to Goods shipped in the Names of Persons who are not the actual Proprietors thereof, and to the Deposit or Pledge of Goods, affords great Facility to Fraud, produces frequent Litigation, and proves, in its Effects, highly injurious to the Interests of Commerce in general"; Be it therefore enacted . . . That from and after the passing of this Act, any Person or I'ersons intrusted, for the Purpose of Sale, with any Goods, Ware or Mer- chandize, and by whom such Goods, Wares or Merchandize shall he shipped, in his, her or tlieir own Name or Names, or in whose Name or Names any Goods, Wares or INIerchau- dize shall be shipped by any other Person or Persons, shall be deemed and taken to be the true Owner or Owners thereof, so far as to entitle the Consignee or Consignees of such Goods, Wares and Merchandize to^a Lien thereon, in respect of any Money or negociable Security or Securities advanced or given by such Consignee or Consignees to or for the Use of the Person or Persons in whose Name or Names such Goods, Wares or Merchandize shall be shipped, or in respect of any Money or negociable Security or Securities received by him, her or them to the Use of such Consignee or Consignees, in the like Manner to all Intents and Purposes as if such Person or Persons was or were the true Owner or Owners of such Goods, Wares and Merchandize ; provided such Consignee or Consignees shall not have Notice, by the Bill of Lading for the Delivery of such Goods, Wares or Merchandize or otherwise, at or before the Time of any Advance of such Money or negociable Security, or of such Receipt of Money or negociable Security, in respect of which such Lien is claimed, that such Per- son or Persons so shipping in his, her or their own Name or Names, or in whose Name or Names any Goods, Wares or Merchandize shall be shipped by any Person or Per- sons, is or are not the actual and bona fide Owner or Owners, Proprietor or Proprietors of such Goods, Wares-and Merchandize so shipped as aforesaid, any Law, Usage or Cus- tom to the contrary thereof in any wise notwithstanding Provided also, that the Per- son or Persons in whose Name or Names any such Goods, Wares or Merchandize are so shipped as aforesaid, shall be taken for the Purposes of this Act to have been in- trusted therewith, unless the contrary thereof shall appear or be shown in Evidence by any Person disputing such Fact. II. And be it further enacted. That it shall be lawful to and for any Person or Per- sons, Body or Bodies Politic or Corporate, to accept and take any Goods, Wares or Merchandize, or the Bill or Bills of Lading for the Delivery thereof, in Deposit or Pledge, from any Consignee or Consignees thereof; but then and in that Case such Person or I'ersons, Body or Bodies Politic or Corporate, shall acquire no further or other Right, Title or Interest, in or upon or to the said Goods, Wares or Merchandize, or any Bill of Lading for the Delivery thereof, than was possessed, or could or might have been enforced by the said Consignee or Consignees at the Time of such Deposit or Pledge as a Security as aforesaid ; but such Person or Persons, Body or Bodies Politic or Corporate, shall and may acquire, possess and enforce such Right, Title or Interest, as was possessed, and might have been enforced, by such Consignee or Consignees, at the Time of such Deposit or Pledge as aforesait'. ; any Rule of Law, Usage or Custom to the contrary notwithstanding. III. Provided always, That nothing herein contained shall be deemed, construed or taken to deprive or prevent the true Owner or Owners, Proprietor or Proprietors of Buch Goods, Wares or Merchandize, from demanding and recovering the same from his, her or their Factor or Factors, Agent or Agents, iiefore the same shall have been po deposited or pledged, or from the Assignee or Assignees of such Factor or Factors. Agent or Agents, in the Event of his, her or their Bankruptcy ; nor to prevent any 6uch Owner or Owners, Proprietor or Proprietors, from demanding or recovering of SECT. IV.] ENGLISH STATUTES. 435 aud from any Person or Persous, or of or from the Assignees ot any Person or Per- sona in case of his or her Bankruptcy, or of or from any Body or Bodies Politic or Corporate, such Goods, Wares or Merchandize, so consigned, deposited or pledged, upon Repayment of the Money, or on Restoration of the negociable Security or Secur- ities, or on Payment of a Sum of Money eiiual to the Amount of such Security or Securities, for wliich Money or negociable Security or Securities such Person or Per- sons, his, her or their Assignee or Assignees, or such Body or Bodies Politic or Cor- porate, may be entitled to any Lien upon such Goods, Wares or Merchandize ; nor to prevent the said Owner or Owners, Proprietor or Proprietors, from recovering of and from such Person or Persons, Body or Bodies Politic or Corporate, any Balance or Sum of Money remaining in his, her or their Hands, as the Produce of the Sale of such Goods, Wares or Merchandize, after deducting thereout the Amount of the Money or negociable Security or Securities so advanced or given upon the Security thereof as aforesaid : Provided always, that in case of the Bankruptcy of such Factor or Agent, the Owner of the Goods so pledged and redeemed as aforesaid shall be held, to have discharged pro tanio the Debt due by him to the Bankrupt's Estate. 6 GEORGE IV., Cap. 94. An Act to alter and amend an Act for the better Protection of the Property of Merchants and others, who may hereafter enter into Contracts or Agreements in relation to Goods, Wares or Merchandize intrusted to Factors or Agents. " Whereas an Act passed in the Fourth Year of the Reign of His present Majesty, intituled An Act for the better Protection of the Property of Merchants and others, who may hereafter enter into Contracts or Agreements in relation to Goods, Wares or Mer- chandize intrusted to Factors or Agents : And Whereas it is expedient to alter and amend the said Act, and to make further Provisions in relation to such Contracts or Agreements, as hereinafter provided " : Be it therefore enacted . . . That from and after the passing of this Act, any Person or Persons intrusted, for the Purpose ot Consignment or of Sale, with any Goods, Wares or Merchandize, and who shall have shipped such Goods, Wares or Merchandize in his, her or their own Name or Names, and any Person or Persons in whose Name or Names any Goods, Wares or Merchan- dize shall b5 shipped by any otlier Person or Persons, shall be deemed and taken to be t?lie true Owner or Owners thereof, so far as to entitle the Consignee or Consigneeg of such Goods, Wares and Merchandize to a Lien thereon, in respect of any Money or negotiable Security or Securities advanced or given by such Consignee or Con- signees to or for the Use of the Person or Persons in whose Name or Names such Goods, Wares or Merchandize shall be shipped, or in respect of any Money or negotiable Security or Securities received by him, her or them, to the Use of such Consignee or Consignees, in the like Manner to all Intents and Purposes as if such Person or Persons was or were the true Owner or Owners of such Goods, Wares and Merchandize : Provided such Consignee or Consignees sliall not have Notice by the Bill of Lading for tlie Delivery of such Goods, Wares or Merchandize or otherwise, at or before the 'J'ime of any Advance of such Money or negotiable Security, or of such Receipt of Money or negotiable Security in respect of which sucli Lien is claimed, that Buch Person or Persons so shipping in his, her or their own Name or Names, or in whose Name or Names any Goods, Wares or Mercliandizo shall be shipped by any Person or Persons, is or are not the actual and houa Jide Owner or Owners, Proprietor or Pro- prietors of such Goods, Wares and Merchandize so shipped as aforesaid, any Law, Usage or Custom to the contrary tlioreof in any wise notwithstanding : Provided also, that the Person or Persons in whose Name or Names any such (Joods, Wares or Mer- chandize are so shipped as aforesaid, sh.all be taken, for the Pnri)osos of this Act, to have been intrusted therewitii for tlie Purpose of Consignment or of Sale, unless the contrary thereof shall be made to appear by Bill of Discovery or otlierwiso, or be mada to appear, or lie shown in Evidence by any Person disputing such Fact. II. And be it further enacted. That from and after the First Day of Cctobcr One 436 ENGLISH STATUTES. [CIIAP. III. thousand eight I.uudreJ and twenty six, aay Terson or Persons intrusted with and in Tos- session of any Bill of Lading, India Warrant, Dock Warrant, Warehouse Keeper.V Cer- tificate, Wharfinger's Certificate, AVarrant or Order for Delivery of Goods, shall he deemed and taken to be the true Owner or Owners of the Goods, Wares and Merchan- dize described and mentioned in tlie said several Documents hereinbefore stated respect- ivelv, or either of them, so far as to give Validity to any Contract or Agreement thereafter to be made or entered into by such Person or Persons so intrusted and in Pos- session as aforesaid, with any Person or Persons, Body or Bodies Politic or Corporate, for the Sale or Disposition of the said Goods, Wares and Merchandize, or any Part thereof, or for the Deposit or Pledge thereof or any Part thereof, as a Security for any Mouev or negotiable Instrument or Instruments advanced or given by such Person or Persons, Bodv or Bodies Politic or Corporate, upon the Faith of such several Docu- ments or either of them : Provided such Person or Persons, Body oi Bodies Politic or Corporate, shall not have Notice by such Documents or either of them or otherwise, that such Person or Persons so intrusted as aforesaid is or are not the actual and bona fide Owner or Owners, Proprietor or Proprietors of such Goods, Wares or ]Merchandize so sold or deposited or pledged as aforesaid ; any Law, Usage or Custom to the contrary thereof in any wise notwithstanding. III. Provided always, and be it further enacted. That in case any Person or Per- sons, Body or Bodies Politic or Corporate, shall, after the passing of this Act, accept and take any such Goods, Wares, or T^Ierchandize in Deposit or Pledge from any such I'ersou or Persons so in Possession and intrusted as aforesaid, without Notice as afore- said, as a Security for any Debt or Demand due and owing from such Person or Persons so intrusted and in Possession as aforesaid, to such Person or Persons, Body or Bodies Politic or Corporate, before the Time of such Deposit or Pledge, then and in that Case such Person or Persons, Body or Bodies Politic or Corporate, so accepting or taking such Goods, Wares or Merchandize in Deposit or Pledge, shall acquire no further or other Kight, Title or Interest in or upon, or to the said Goods, Wares or Merchandize, or any such Document as aforesaid, than was possessed or could or might have been enforced by the said Person or Persons so possessed and intrusted as aforesaid, at the Time of such Deposit or Pledge as a Security as last aforesaid ; but such Person or Persons, Body or Bodies Politic or Corporate, so accepting or taking such Goods, Wares or Merchandize in Deposit or Pledge, shall and may acquire, possess and enforce such Right, Title or Interest as was possessed and migtit have been enforced by such Person or I'ersous so possessed and intrusted as aforesaid ; any Rule of Law, Usage or Custom to the contrary notwithstanding. IV. And be it further enacted, That from and after the First Day of October One thousand eight hundred and twenty six, it shall be lawful to and for any Person or Persons, Body or Bodies Politic or Corporate, to contract with any Agent or Agents, intrusted with any Goods, Wares or Merchandize, or to wliom tlie same may be con- signed, for the Purchase of any such Goods, Wares and Merchandize, and to receive the .same of and pay for the same to such Agent or Agents ; and such Contract and Pavment shall be binding upon and good against the Owner of such Goods, Wares and Merchandize, notwitlistanding such Person or Persons, Body or Bodies Politic or Corporate, shall have Notice that the Person or Persons making and enter- ing into such Contract, or on whose Behalf such Contract is made or entered into, is an Agent or Agents : Provided such Contract and Payment be made in the usual and ordinary Course of business, and that such Person or Persons, Body or Bodies Politic or Corporate, shall not, when such Contract is entered into or Payment made, have Notice that such Agent or Agents is or are not authorized to sell the said Goods, Wares and Merchandize, or to receive the said Purchase Money. V. And be it further enacted. That from and after the passing of this Act, it shall be lawful to and for any Person or Persons, Body or Bodies Politic or Corporate, to accept and take any such Goods, Wares or Merchandize, or any such Document as aforesaid, in Deposit or Pledge from any such Factor or Factor.s, Agent or Agent", notwithstanding such Person or Persons, Body or Bodies Politic or Corporate, shall have such Notice as aforesaid, that the Person or Persons making such Deposit or SECT. IV.] ENGLISH STATUTES. 437 riedge is or are a Factor or Factors, Ageut or Agents; but tlier aaci in that Case such Person or Tersons, Body or Bodies Politic or Corporate, shall acquire no further or other Right, Title or Interest in or upon or to the said Goods, Wares or Merchandize, or any such document as aforesaid, for the delivery thereof, tlian Vfus possessed or could or might have been enforced by the said Factor or Factors, Agent or Agents, at the Time of such Deposit or Pledge as a Security as last aforesaid ; but such Person or Persons, Body or Bodies Politic or Corporate, shall and may acquire, possess and en- force such Ki"o-ht, Title or Interest as was possessed and might have been enforced by such Factor or Factors, Agent or Agents, at the Time of such Deposit or Pledge as aforesaid ; any Rule or Law, Usage or Custom to the contrary notwithstanding. VI. Provided always, and be it enacted. That nothing herein contained shall be deemed, construed or taken to deprive or prevent the true Owner or (Jwners, or Pro- prietor or Proprietors, of such Goods, Wares or Merchandize, from demanding and recovering the same from his, her or their Factor or Factors. Agent or Agents, before the same shall have been so sold, deposited or pledged, or from tlfe Assignee or Assignees of such Factor or Factors, Agent or xVgents, in the Event of his, her or their Bankruptcy ; nor to prevent sueli Owner or Owners, Proprietor or Proprietors, from demanding or recovering of and from any Person or Persons, Body or Bodies Politic or Corporate, tlie Price or Sum agreed to be paid for the Purchase of such Goods, Wares or Merchandize, subject to the Right of Setoff on the Part of such Person or Persons, Body or Bodies Politic or Corporate, against such Factor or Factors, xVgent or Agents ; nor to prevent such (Jwner or Owners, Proprietor or Proprietors, froni de- mamling or recovering of and from such Person or Persons, Body or Bodies Politic or Corporate, such Goods, Wares or Merchandize so deposited or pledged, upon Repay- ment of the Money, or on Restoration of the negotiable Instrument or Instruments so advanced or given on the Security of such Goods, Wares or Merchandize as aforesaid, by such Person or Persons, Body or Bodies Politic or Corporate, to such Factor or Factors, Agent or Agents; and upon Payment of such further Sum of ^Money, c* on Restoration of such other negotiable Instrument or Instruments (if any) as may have been advanced or given by such Factor or Factors, Agent or Agents, to such Owner or Owners, Proprietor or Proprietors, or on Payment of a Sum of Money equal to the Amount of such Instrument or Instruments ; nor to prevent the said Owner or Owners, Proprietor or Proprietors, from recovering of and from such Person or Persons, Body or Bodies Politic or Corporate, any Balance or Sum of Money remaining in his, her or their Hands, as the Produce of the Sale of such Goods, Wares or Merchandize, after deducting thereout the Amount of the Money or negotiable Instrument or Instru- ments so advanced or given upon the Security thereof as aforesaid : Provided always, that in case of the Bankruptcy of any such Factor or Agent, the Owner or Owners, Proprietor or Pro])rietors of the Goods, Wares and Mercliandize so pledged and re- deemed as aforesaid, shall be held to have discharged pro tnnto the Debt due by him, her or them to the Estate of such Bankrni)t. VII. [This section provides the penultij for the misdemeanor of ai/rnts fraudalently pledijiiirj (joods of their principals.'] VIII. Provided always, and be it further enacted. That nothing herein contained shall extend or be construed to extend to subject any Person or Persons to Prosecu- tion, for having deposited or pledged any Goods, Wares or Merchandize so intrusted or consigned to him, her or them, provided the same shall not be made a Security for or subject to the Payment of any greater Sum or Sums of money than at the Time of such Deposit or Pledge was justly (hie and owing to such Person or Persons from his, her or their Principal or Principals: Provided nevertheless, that the Acceptance of Bills of Exchange by such Person or Persons drawn by or on account of such Principal or Principals, shall not bo considered as constituting any Part of such Debt so due and owing from such Princii)al or I*rinci|)als witliiii the true Intent and Moaning of this Act, so as to excuse the Conseciuence of such a Deposit or Pledge, unless such Bills 'shall lie paid wlien the same shall respectively become due. IX. Provided also, and be it further enacted. That the Penalty by this Act annexed to the Commission of any Offence intended to be guarded against by this Act, 438 ENGLISH STATUTES. [CHAP. III. shall not extend or be construed to extend to any Partner or Partners, or other Person or Persons of or belonging to any Partnership, Society or Firm, except only such Partner or Partners, Person or Persons, as shall be accessary or privy to the Commission of such Offence ; any Thing herein contained to tlie contrary in any wise notwithstanding. X. [This section provides /or remedies at law or equitij.l 5 AND 6 VICTORIA, Cap. 39. An Act to amend the Law relating to Advances bona fide made to Agents intrusted with Goods. Whereas .... Be it therefore enacted .... That from and after the passing of this Act any Agent who siiall tliereafter be intrusted with the Possession of Goods, or of the Documents of Title to Goods, shall be deemed and taken to be the Owner of such Goods and Documents, so far as to give Validity to any Contract or Agreement by way of Pledge, Lien, or Security bona fide made by any Person with such Agent so intrusted as aforesaid, as well for any original Loan, Advance, or Payment made upon the Security of such Goods or Documents, as also for any further or continuing Ad- vance in respect thereof, and such Contract or Agreement shall be binding upon and good against the Owner of such Goods, and all other Persons interested therein, not- withstanding tlie Person claiming such Pledge or Lien may have had Notice tliat the Person witli whom such Contract or Agreement is made is only an Agent. II. And be it enacted. That where any such Contract or Agreement for Pledge, Lien, or Security shall be made in consideration of the Delivery or Transfer to such Agent of any other Goods or Merchandize, or Document of Title, negotiable Security upon whicli the Person so delivering up the same had at the Time a valid and avail- able Lien and Security for or in respect of a previous Advance by virtue of some Con- tract or Agreement made with such Agent, such Contract and Agreement, if bona fide on the Part of the Person with whom the same may be made, sliall be deemed to be a Contract made in consideration of an Advance within tlie true Intent and Meaning of this Act, and shall be as valid and effectual, to all Intents and Pur])oses, and to tiie same Extent, as if the Consideration for the same had been a bona fide present Ad- vance of Money : Provided always, that the Lien acquired under such last-mentioned Contract or Agreement upon the Goods or Documents deposited in exchange shall not exceed the Value at the Time of the Goods and Mercliandize which, or the Docu- ments of Title to whicli, or the negotiable Security which shall be delivered up and exchanged. Ill Provided always, and be it enacted, That this Act, and every IMatter and Thing herein contained, shall be deemed and construed to give Validity to such Con- tracts and Agreements only, and to protect only such Loans, Advances, and Exclianges, as shall be made bona fide, and without Notice that the Agent making such Contracts or Agreements as aforesaid has not Authority to make the same, or is acting mala fide in respect thereof against the Owner of such Goods and Merchandize ; and nothing herein contained shall be construed to extend to or protect any Lien or Pledge for or in respect of any antecedent Debt, owing from any Agent to any Person with or to whom such Lieri or Pledge shall be given, nor to authorize any Agent intrusted as aforesaid in deviating from any express Orders or Authority received from the Owner; but that, for the Purpose and to the Intent of protecting all such bona fide Loans, Advances, and Exchanges as aforesaid (though made with Notice of such Agent not ])€ing the Owner, but without Notice of the Agent's acting without Autliority), and to no further or other Intent or Purpose, such Contract or Agreement as aforesaid shall be binding on the Owner and all other Persons interested in such Goods. IV. And be it enacted, That any Bill of Lading, India Warrant, Dock Warrant, Warehouse Keeper's Certificate, Warrant, or Order for Delivery of Goods, or any other Document used in the ordinary Course of Business as Proof of the Possession or SECT. IV.] ENGLISH STATUTES. 439 ContrOi of Goods, or authorizing or purporting to authorize, either l)y ludorsement or by Deliver)^, the Possessor of such Document to transfer or receive Goods thereby represented, shall be deemed and taken to be a Document of Title within the Mean- ing of this Act; and any Agent intrusted as aforesaid, and possessed of any such Document of Title, whether derived immediately from the Owner of such Goods, or obtained by reason of such Agent's having been intrusted with the Possession of the Goods, or of any other Document of Title thereto, shall be deemed and taken to have been intrusted with the Possession of the Goods represented by such Document of Title as aforesaid, and all Contracts pledging or giving a Lien upon such Document of Title as aforesaid shall be deemed and taken to be respectively Pledges of and Liens upon the Goods to which the same relates ; and such Agent sliall be deemed to be possessed of such Goods or Documents, whether the same shall be in his actual Custody, or shall be held by any other Person subject to his Control or for him or ou his Behalf ; and where any Loan or Advance shall be Uma Jicle made to any Agent in- trusted with and in possession of any such Goods or Documents of Title as aforesaid, ou the Faith of any Contract or Agreement in writing to consign, deposit, transfer, or deliver sucli Goods or Documents of Title as aforesaid, and such Goods or Documents of Title shall actually be received by the Person making such Loan or Advance, with- out Notice that such Agent was not authorized to make such Pledge or Security, every such Loan or Advance sliall be deemed and taken to be a Loan or Advance ou the Security of such Goods or Documents of Title within the Meaning of this Act, though such Goods or Documents of Title shall not actually be received by the Per- son making such Loan or Advance till the Period subsequent thereto ; and any Con- tract or Agreement, whether made direct with such Agent as aforesaid, or with any Clerk or other Person on his Behalf, shall be deemed a Contract or Agreement with such Agent ; and any Payment made, whetlier by Money or Bills of Exchange, or other negotiable Security, shall be deemed and taken to be an Advance within the Meaning of tliis Act ; and an Agent in possession as aforesaid of such Goods or Docu- ments shall be taken, for tlie Purpose of tliis Act. to have been intrusted therewith by the Owner thereof, unless the contrary can be shown in Evidence. V. Provided always, and be it enacted, That nothing herein contained shall lessen, vary, alter, or affect the civil Kesponsibility of an Agent for any Breach of Duty or Contract, or Nonfulfilment of his Orders or Authority in respect of any such Coutract, Agreement, Lien, or Pledge as aforesaid. VL [Tin's section declares an agent making consignments contrary to instruction of princii>ul, (jui/ti/ of misdemeanor '\ VIL I'rovided also, and be it enacted. That nothing herein contained shall prevent such Owner as aforesaid from having the liight to redeem such Goods or Documents of Title pledged as aforesaid, at any Time before such Goods shall have been sold, upon Pej)ayment of the Amount of the Lien thereon, or Restoration of the Securities in respect of which such Lien may exist, and upon Payment or Satisfaction to such Agent, if by him required, of any Sum of Money for or in respect of which such Agent would by Law be entitled to retain the same Goods or Documents, or any of them, by way of Lien as against sucli Owner, or to prevent the said Owner from re- covering of and from such Person with whom any such Goods or Documents may have been pledged, or who shall have any such Lien thereon as aforesaid, any Balance or Sum of Money remaining in his Hands as the I'roduce of the Sale of such Goods, after deducting the Amount of the Lien of such Person under such Contract or Agreement as aforesaid Provided always, that in case of the Bankruptcy of any such Agent the Owner of the Goods which shall have been so redeemed by such Owner as aforesaid shall, in respect of the Sum paid by him on account of such Agent for sucli Pedemp- tion, be held to have paid such Sum for the I'se of such Agent before his Bankruptcy, or in case the Goods shall not be so redeemed the Owner shall be deemed a Creditor of such Agent for the Value of Goods so pledged at the Time of the Pledge, and shall, if he sliall think fit, be entitled in either of such Cases to prove for or set off the Sura 80 paiil, or the Value of such Goods as the Case may be. 440 FUENTES V. MONTIS. [CHAP. III. FUENTES V. MONTIS. In the Common Pleas, February 10, 1868. [Reported in Law Reports, 3 Common Pleas, 268.] TViLLES, J. In this case, the plaintiffs, Messrs. Fuentes, had con- signed a quantity of wine to a person named De Ponte, for sale. When he received the wines, De Ponte was, no doubt, and for some time after- wards continued to be, an agent in possession of and intrusted with the wines, so as to come witliin the provisions of the Factors Acts. Messrs. Fuentes became dissatisfiM with his conduct as agent, appointed Messrs. Collier to act for them in that capacit}', and gave De Ponte to understand that his agency- was at an end, and required him to hand over the wines remaining in his hands to Messrs. Collier. De Ponte refused to compl}' with this request, and refused without any good reason, because he appears to have had no claim against Messrs. Fuentes by wa^' of lien or otherwise. It was his duty as agent to give up the wines ; and, in retaining the documents of title (which for the purposes of the Factors Acts are the same as the goods themselves), he was guilty of a wrong. That state of wrongful possession by De Ponte continued for some time after the revocation of his authority and the demand of the wines and the documents of title on behalf of Messrs. Fuentes ; and during that wrongful possession, and after the revocation of his authority as agent, De Ponte ol)tained an advance on the security of the documents of title, which advance would have been protected by the Factors Acts, and effectual to give the lenders, Messrs. Montis, a valid pledge of the documents of title to the wines, supposing there had been no revocation of De Ponte's authority. The question, therefore, is neatly raised, whether an agent who has once been intrusted with and remains in possession of goods or the documents or title thereto, continues to have authority quoad third persons who bona fide make an advance, so as to give them a title as against his principal, notwithstanding that before the right of the lender arises the authority which the agent had has been revoked, so that, as between himself and his principal, he has ceased to be an agent, and has become a person occupying the relation simply of a wrongdoer in detaining the goods or the documents of title. That question has been argued before us with great acumen, and we are much indebted to the learned counsel on both sides for the assistance we have received from them. The question is one of considerable nicet}'. But, as we have had an opportunity of thinking it over, we consider it right to pronounce our opinion upon it at once. It is a question of nicety, not only as depending on the construction of the Acts of Parliament relating to factors, but also because it belongs to a class of questions upon which great differences of opinion have existed amongst mercantile men, though not amongst lawyers ; that is, the class of questions which relate to how far a person who is not the real owner of goods, but who SECT. IV.] FUENTES V. MONTIS. 441 appears to the world, or rather to those who deal with him, as owner, and who deal with him on the faith of his apparent ownership, should be allowed to confer upon a thud person a greater title than he himself has. "With respect to certain sorts of propert}', everybody is agreed that there is no restriction of the power of the apparent owner to trans- fer a right to any person who takes it from him bona fide ; as in the case of the ordinai-y currency of the country, or that which has for mercantile convenience been put upon the same footing, viz., bills of exchange and other negotiable instruments, including bills of lading, as against stoppage in transitu onl^'. Every one is agreed that, with respect to the ordinary currency, and bills of exchange whilst running, a person who receives them bona fide and for value is entitled to hold them notwithstanding any inflrmit}' of title in the person from whom he obtains them. That, however, is far from being so as to ordinary mer- chandise. The only cases wliich at the moment occur to my mind in which a man ma}' give to another a better title to goods than he himself has, are, the case of a sale in market overt, in which case the buyer acquires a title to the goods whatever may have been the right of the seller, — probabl}^ because of the publicity of the transaction and the inconvenience which would result from the adoption of any other rule. And even to this there are exceptions, arising out of the statute of restitution. A second case which may be put is the case of a man sell- ing goods under circumstances in which he might rescind the contract on the ground of fraud in the buyer : if the buyer has obtained posses- sion, that possession as against the seller is wrongfid ; but if the buyer, before the seller has exercised his option of rescinding the contract, has sold the goods to &. bona fide purchaser, such bona fide purchaser would be entitled to retain them as against the seller, notwithstanding the latter has been defrauded. A third case in which a man ma}^ conve}' a better title to goods than he himself had, and one which is more appo- site to the present, is, wliere an agent who carries on a public business deals witli the goods in the ordinary course of it, though he has received secret instructions from his principal to deal with them contrary to the ordinary course of that trade. In that case he has what has been some- times called an apparent authority, or, as mj- brother Byles more accurately' calls it, an ostensible authorit}', to deal in such a way witli the goods as agents ordinarily deal witli them ; and, if he deals with them in the ordinary way of the trade, he binds his principal. These instances, however, are exceptional to the rule that no man can give a better title to goods than he has himself, and that the real owner is not bound except to the extent of an interest which he has parted with or an authority which he has given. Now, the result of that state of the law witii respect to agents employed to sell, led to the course of legisla- tion which is known by the general description of the Factors Acts ; because it was held b}' the courts of law that the case of a pledge of goods by a factor intrusted with the possession of goods, and authorized to sell them, fell within the general rule to which the instances above 442 FUENTES V. MONTIS. [CHAP. III. enumerated are exceptions, and that it did not fall within the exceptions by reason of a pledge being an ordinary and accustomed transaction to be entered into b}^ a person intrusted as agent to sell, or perhaps more properly by reason of the courts of law having treated a pledge as being out of the scope of an authority to sell. The legislature seem to have considered that to be too narrow a view of the proper scope of the authority of an agent to sell ; and they were no doubt induced to think so bj- reason of the altered mode of conduct- ing mercantile transactions in modern times, and because it had become a usual and accustomed course for factors intrusted with goods for sale, to make advances to their principals either in money or by the accept- ance of bills against their consignments, and to keep themselves in funds by repledging the documents of title with bankers or other money dealers. But, whatever may have been the reason, it is clear that that was the particular evil which the legislature sought to remedy b}' the Factors Acts. And if it be proper, in construing a statute, to look at the mischief intended to be remedied, — which Lord Coke says is one of the rules for construction of acts of Parliament, — one would con- strue such a statute with the expectation of finding that the legislature ■would deal with the class to which persons who in the usual course of business advance mone}' on goods coming to them for sale belong, and who previously could not pledge beyond their own advances, because the authority of the agent, as between himself and his principal, was limited to contracts of sale, and not capable of being extended by con- struction to contracts of pledge. That anticipation of what the legisla- ture intended by the Factors Acts, if we are to rely upon a series of decisions upon them, to some of which reference has been made, and all of which are in harmony, would turn out to be correct, because it has from time to time been held that, notwithstanding general terms used here and there throughout those acts, which, taken b}' themselves, miglit be held to include all agents or persons intrusted, those general expressions are to be construed with reference to the general scope and object of the acts as well as to the particular language used, so as to limit their operation to the case, first, of persons intrusted as agents. Take the case which it was sought at one time to bring within the operation of the acts, of a seller handing to the buyer a document of title, — it might l)e said that the buyer was a person intrusted with and in possession of the document of title, and, if he dealt with it in the ordinary course of business under the first or second of the Factors Acts he ought to give a complete title as against the seller. But one of the earliest decisions upon the construction of the 6 Geo. 4, c. 94, and a decision which has never been quarrelled with, is Jenkins v. Usborne, 7 M. & G. 678, where it was held that the buyer in such a case is not a person "intrusted" or "in possession" within the meaning of the act, because he was not intrusted as an agent, and therefore a person who buys from him a dock-warrant or other document of title, is, as against the seller, in no better position than the buj-er himself, and so SECT. IV.] FUENTES V. MONTIS. 443 the right to stop in transitu is not excluded. Next it was held that, not only must the person be intrusted as agent, but he must be intrusted as agent in a mercantile transaction ; and therefore a mere servant intrusted with a document of title, though an agent in one sense, is not so in the sense of the act, and therefore cannot, as against his master, give to another a right which he himself had not. Next, it appears that not only must the person intrusted be an agent, but he must be an agent for sale ; and that would exclude the case of a carrier or ware- houseman, who is in some sense an agent and intrusted with the pos- session of goods. The agents contemplated by the Factors Acts are agents intrusted for sale. I do not mean to limit the operation of the statute to agents intrusted with goods for future sale, either generally or in the particular instance. It is necessary to guard oneself in that respect, because every one is aware of the case of the commission-agent who informed the owners of goods that he had an opportunity^ of selling them, and, having got samples, represented that he had sold the goods to a person who it was afterwards discovered had no existence, and, having by that fraud got possession of the goods, pledged them to a third person, who made an advance bona fide and without notice of the fraud ; and it was held that the latter acquired a good title to the goods under the Factors Acts. I allude to the case of Baines v. Swainson, 4 B. & S. 270 ; 32 L. J. (Q. B.) 281, which Mr. Channell evidently had in his mind when he made a very pertinent observation, which I shall refer to by-and-b}'. The court in that case labored hard to show that the person was intrusted with and in the possession of the goods as agent, and as agent for sale, though he was not when first intrusted an agent for the future sale of the goods, was still within the operation of the Factors Acts, because he was an agent for sale, and his employment was connected with the sale, as was put by Crompton, J. The court took pains to show that the judge who tried the cause, and wlio at first thought that, as the intrusting was not for sale generally, it did not come within the Factors Acts, was wrong. That case, however, is strong to show the extreme limit to which the Factors Acts have been pushed ; and it was properly referred to for that purpose. But it is necessary not ox\\y to show that the person intrusted is an agent and an agent for sale, but it is necessary also, as Mr. Channell pointed out, that he was intrusted with the particular goods as an agent for sale or for an object connected with the sale, — to avoid coming into collision with the case of Baines v. Swainson, 4 B. & S. 270; 32 L. J. (Q. B. ) 281, to which I entirel}' assent. Here it is necessary to consider the state of the law as to an agent intrusted with goods, but not for the purpose of sale, because it differs from that which relates to other agents. In the case of an agent whose general business it is to sell, being intrusted with goods for a [)urpose other than that of sale, as upon a pledge for an advance of money, with instructions not to sell ; or, if he happen to have a warehouse, though his general business is that of a factor and not of a warehouse-keeper, 444 FUENTES V. MONTIS. [CHAP. III. and goods are placed in his warehouse at a rent: in either of these cases he would be a person who /)ri??ia facie would appear to be justi- fied in dealing with the goods as factor : and yet there is an express provision as to such a person (for one cannot doubt that the judges in Baines v. Swainson, supra, were right in so expounding the section), that he shall be only 2)n»za facie in a position to deal with his princi- pal's goods more largely than as agent he could do, and that his princi- pal may repel the presumption of his more enlarged authorit}' under the Factors Acts, and show the real nature of the transaction between them. That provision is (5 & 6 Vict. c. 39, § 4), "an agent in possession of such goods or documents shall be taken, for the purposes of this act, to have been intrusted therewith b}' the owner thereof, unless the con- trary can be shown in evidence." That pi'ovision in the 4th section of the 5 & 6 Vict. c. 39, has been applied to the extreme by Blackburn, J., in his judgment in Baines v. Swainson, 4 B. «&; S. 270, 285 ; 32 L. J. (Q. B.) 281, 288, where he says : "I do not agree with the counsel for the defendants, that the mere fact of an agent being found in possession of goods, although they have been handed to him by the owner knowing that he carries on such a business, amounts to an 'intrusting' him as agent ; though I think that, under that part of § 4 of Statute 5 & 6 Vict. c. 39, to w'hich I have referred, the fact of a person being put into pos- session of goods calls upon the person who gave him possession to explain and show that it was not an intrusting." But for that guidance, I might rather have inclined to read that last clause of the 4th section as applicable to the cases provided for in the previous part of it, and to be satisfied with the case in which the factor has been held to be intrusted with the possession of documents of title which he has been enabled to obtain by reason of his having been intrusted with other documents which led to the acquisition of the former. But I will not criticise the opinion there thrown out, but will adopt it for the purpose of the present case. Here is the case of an agent whose general business brings him within the scope of the act, who, being in possession of goods belonging to a principal, has pledged them. What is the result? Is it that a person who has innocently dealt with the agent by reason of his general character and employment, is to take advantage of the apparent owner- ship of the agent, as a buyer in market overt would ? or is he to be subject to some afterclap, some proof by the owner that he was not so intrusted as to bring him within the acts? Let the statute speak for itself. Its words are: "an agent in possession as aforesaid of such goods or documents shall be taken, for the purposes of this act, to have been intrusted therewith by the owner thereof, unless the contrary shall be proved in evidence." The inevitable conclusion is, that, if the con- trary can be proved in evidence, "an agent in possession as aforesaid of such goods or documents," is not to be taken to be "intrusted there- with by the owner thereof" That introduces the argument which was urged on the part of the plaintiffs, and well illustrated by the case put by Mr. Channell, in which SECT. IV.] FUEKTES V. MONTIS. 445 the claim of a person bona fide making an advance to the factor may be defeated. That is the case of goods pledged with a factor, but not intrusted to him in his business of a factor. I draw two conclusions from the state of the law of which I have endeavored to give a sum- mary, not dwelling for the present upon the precise language of the acts, but upon the construction which has been put upon them, with a view to see whether that construction enables us to come to a decision upon this case. The conclusion to which the course of the decisions compels me to come is that which is expressed b}- Blackburn, J., in Baines v. Swainson, supra^ viz., that the authority' given by the Factors Acts quoad third persons is an authorit}' superadded and accessory to the ordinarj- authority given by a principal to his agent. It was not intended by those acts to provide a remedy for all the hardships which may occur to innocent persons by dealing with one in the apparent ownership of goods as if he were the real owner ; but onl}' with cases where the agent is intrusted with and in possession of the goods with the assent of the true owner of them. Much argument has been urged upon the words "intrusted and in possession." But it appears to me that, before you can deal with the state of being intrusted or in possession, you must get your substantive, viz., agent. The person who is to give a title as against the principal or owner of the goods must be an agent. If he has no right to the possession as agent, the provisions of the Factors Acts as to pledging do not apply to him. I might desire that it was in the power of the judges to amend the law from time to time with reference to mercantile convenience. And, if there were a large preponderance of opinion amongst mercantile men that there ought to be a free power of transfer of goods by persons having the apparent ownership, I might feel disposed to exercise that power, if it had existed, in favor of the opinion of such majority. But, were I to do this, I should be doing an unconstitutional act. And I cannot help taking warning against interfering with the intentions of the legislature from any notions of expediency', when I recollect what took place in Kingsford v. Merry, 11 Exch. 577; 25 L. J. (Ex.) 1G6. There one Anderson falsely and fraudulently represented to the plain- tiffs that he was authorized by and acting on behalf of Van Nottin & Co. in procuring certain goods, and the plaintiffs, in consequence of such false and fraudulent representation, delivered the goods to Anderson with intent to transfer to him the property in them, and Anderson pledged the goods with the defendant for a bona fide advance ; and the Court of Exchequer held that the i)laintiffs could not maintain an action for the goods without tendering or paying the defendant his advance, upon tlie principle that, "wlien a vendee o])tains possession of a chattel with the intention by the vendor to transfer both the prop- erty and possession, although the vendee has committed a false and fraudulent misrepresentation in order to effect the contract or obtain the possession, the property vests in the vendee until the vendor has 446 FUENTES V. MONTIS. [CHAP. III. (lone soiuc act to disallinii tlie transaction." But, when the case came before the Exchequer C'haniber, the facts as they were stated for the opinion of the Court of Ph'ror not sustaining the conclusion of fact upon which tlie court below relied, the judgment was reversed. The ground of the decision in the Exchequer Chamber was, that "the plain- tirts and Anderson never did stand in the relation of vendor and vendee of the goods, and that there was no contract between them which the plaintiffs might eitlier affirm or disaffirm." Thus, the man who inno- cently advanced his money upon the faith of the apparent ownership of the goods in Anderson was held to have no title to the goods. Every- body is aware of the great attention which that ease excited amongst mercantile men, and what a large amount of consideration and discus- sion ensued by men of great ability and reflection, especially as to the expediency of expanding the principle of the Factors Acts so as to meet the case of apparent ownership ; and one cannot but remember that all that consideration and discussion failed to lead to any practical result ; the law remaining as it was before. I am at all times anxious to give full effect to the intention of the legislature as expressed in the language they have used. But I do not feel myself at libert}', from any notions of expediency which I may entertain, to go beyond that which I find written. I therefore feel compelled to deal with the acts of Par- liament in question according to the expressions I find there, always bearing in mind that the substantive thing that is being dealt with is an agent. 1 take the 1st section of the 5th and 6th of the Queen, — "From and after the passing of this act, any agent who shall thereafter be mtrusted with the possession of goods, or of the documents of title to goods, shall be deemed and taken to be the owner of such goods and documents, so as to give validity to an}' contract or agreement by way of pledge, lien, or securit}', botia Jide made by an}- person with such agent so intrusted as aforesaid, as well for an}' original loan, advance, or payment made upon the securit}' of such goods or documents, as also for any further or continuing advance in respect thereof; and such contract or agreement shall be binding upon and good against the owner of the goods and all other persons interested therein, notwith- standing the person claiming such pledge or lien may have had notice that the person with whom such contract or agreement is made is only an agent." Where the word "agent" is not repeated, I assume that it must be read down. I therefore come to the conclusion that the person who is to create a valid pledge of his principal's goods must be an agent who is intrusted at the time of doing the act which is to have that effect. That being so, it appears to me that an agent whose authority has been revoked, and who wrongfully retains possession of goods wiiich he is bound to give up, at the time when he purports to make a pledge, is not an agent at all, but a wrongdoer, and is not within the acts, nor is the pledge a transaction within their protection. It appears to me that the Factors Acts will be fully satisfied by holding the effect of them to be, that a man who places goods, or the documents SECT. IV.] COLE V. NOKTHWESTEKI^ BANK. 447 of title to goods, in tlie bands of an agent for sale, or for a purpose connected with sale, shall be taken to have given the agent authority to pledge, and such authority continues so long as the agency continues ; and that the authority given to the agent quoad third persons is an authority juris et dejure, superadded and accessory to the agency, and ceases when his possession as agent ceases. And I can no more come to the conclusion that a person who is "in possession," but who has ceased to be "intrusted," and ceased to be agent, can have a right to pledge so as to confer upon the pledgee the rights created by the Fac- tors Acts, than I can come to the conclusion that a person who was "intrusted," but who has ceased to be "in possession," can have such right, which he clearly could not. For these reasons, I am of opinion that Messrs. Montis had no right to hold the wines in question as against Messrs. Fuentes ; and, having considered the case with all the anxiety which its novelty and nicety and the worth of the arguments which have been addressed to us demanded, I feel compelled to come to the conclusion that the verdict for the plaintiffs ought to stand, and that the rule should be discharged. Hule discharged} COLE V. NORTHWESTERN BANK. In the Exchequer Chamber, February 12, 1875. [Reported in Law Reports, 10 Common Pleas, 354.] Blackburn, J. This is a special case on which tlie Court of Com- mon Pleas gave judgment for the plaintiffs for the sum of £6,6G1 Is. Id. Tlie defendants brought error on that judgment, and the case was argued in the Exchequer Chamber on the 4th and 5th of February last, by Mr. Benjamin for the defendants (the plaintiffs in error) and Mr. Herschell for tlie plaintiffs (the defendants in error), before my brothers Bramwell, Mellor, Lush, Cleasb}-, Pollock, and Amphlett, and myself, when we took time to consider. Tlie case was stated without pleadings. It did not as originally drawn give express power to l!ic court to draw inferences of fact : but, on that l)eing pointed out during the argument, it was agreed that it was so intended, and that, if necessary, an amendment should be made, to give that power. The plaintiffs, merchants in London, were the owners of two parcels of sheep's wool, and two parcels of mohair of goats' wool. All four parcels were received for tlie plaintiffs by one Sice, a warehouseman and sheep's wool-broker at Liverpool, and were by him deposited in his warehouse at Liverpool. From thence tliey were taken on the 13th of April, 1872, by the defendants, who claimed right so to do 1 Keating and Montague Smith, J J, delivered brief concurring opinions. 448 COLE V. NORTHWESTERN JBANK. [CHAP. III. under a coutract made b}' Slee on tlie 5tli of April, 1872, by which he pledged, or agreed to pledge, the whole four parcels to the defendants for £7,000 then advanced to him by the defendants on that securit}'. At the time when this contract was made, the two parcels of goats' wool and one of the parcels of sheep's wool were in Slee's warehouse. The other parcel of sheep's wool was still on board the vessel (the "Grecian") by which it had come: but Slee held the bill of lading, which had been sent to him by the plaintiffs to enable him to land and deposit the wool in his warehouse ; and (after the making of the con- tract of the 5th of April) on the 9th of April this sheep's wool also was actually deposited in the warehouse. Slee absconded witli the £7,000 thus obtained, and then the defend- ants, having notice that Slee had committed this act of bankruptcj-, but not having any further notice that he had not been so intrusted with the possession of the goods as to be able to pledge them, took forcible possession of the whole goods against the will of Slee's clerks. The great question was whether Slee was, under the circumstances, so intrusted with the possession of the goods as to have been able on the 5th of April (supposing he had then delivered actual possession to the defendants) to make a pledge to the defendants good against the plain- tiffs. As to this, there is a distinction between the sheep's wool and the goats' wool ; for Slee never sold goats' wool at all, and was clearl}- intrusted with the goats' wool as wai'ehouseman, and as warehouseman only. But he did sell sheep's wool as a broker. A broker, who, without being intrusted with the goods, makes a con- tract between two principals, has no opportunity to pledge the goods at all. But we know (though it is not stated in the case) that brokers often are capitalists who make advances on the goods and have them transferred into their names as a security for such advances. And some- times, especially where the principal is resident at a distance, the goods are transferred into the broker's name for the purpose of facilitating a sale by him, although there has been no advance made hy him upon them. The agent thus intrusted is something more than a mere broker. A pledge bj- a person thus intrusted with the possession of goods as broker would no doubt be good. And if, as is sometimes the case, the broker had warehouses of his own in which the goods so intrusted to him were stored, they would be equally in his possession as broker as if thcv had been stored in the warehouse of another in his name. But we are all agreed that we must understand from the statement in the case that Slee had not warehouses as merely ancillary' to his business as broker, but that he carried on two distinct and independent businesses, the one being that of a warehouseman, the otlier that of a sheep's wool-broker: and this raises the first question of fact, viz. whether the goods in ques- tion were intrusted to him merelv as warehouseman, or also as broker. It is stated in the case that the bills of lading of the plaintiffs' wool (whether goats' wool or sheep's wool) were in the ordinarj- course of business sent down to Slee for the purpose of his receiving the wool SECT. IV.] COLE V. NORTHWESTERN BANK. 449 from the ship and warehousing it. Slee, after the wool had been so received and warehoused, sent up a report and valuation thereon, and then awaited the plaintiffs' further instructions as to disposal. Two sample letters are set out in the appendix, one relating to goats' wool, the other to sheep's wool ; and tliey bear out the statement in the case that both kinds of wool were treated hi exactk the same way. But there is the further statement that, "as to the sheep's wool, Slee had no general authority from the plaintiffs to sell, but always awaited instructions, and acted only under specific authority given to him from time to time in each case ; and when such last-mentioned sales were effected, Slee received the proceeds. We draw the inference of fact that, as between the plaintiffs and Slee, Slee was intrusted with the sheep's wool and goats' wool alike, solely for the purpose of warehousing them. But as it appears that he was sometimes authorized by the plaintiffs to sell and receive payment for sheep's wool deposited in his warehouse, the question arises whether he could make to the defendants a good pledge of any wool (either goats' wool and sheep's wool, or of sheep's wool onl}-, or of neither), de- posited by the plaintiffs in his warehouse, though not intended to be sold. The Court of Common Pleas decided that the pledge (even suppos- ing it to have been executed by delivery on the 5th of April) would not have been good either as to the sheep's wool or the goats' wool : and we are of opinion that they were right, and that their judgment should be affirmed. This renders it unnecessary for us to express any opinion on two sub- sidiary points raised by Mr. Herschell, — first, that the taking forcible and (as he argued) wrongful possession on the 13th of April could not better the defendants' position, who therefore remained in the position (provided for in the 4th section of 5 & 6 Vict. c. 39) of a person who has made a contract for a pledge with an agent, but has not actually received the goods contracted to be pledged, — and, secondl}-, as to the parcel per " Grecian," that Slee on the 5th of April, when the con- tract was made, was not in possession of these wools, though he had the bill of lading under which he subsequentlj' obtained them. We merely mention these two points, to show that we have not overlooked ihem ; but express no opinion on either. The decision of this case depends, in our opinion, entirely on the true construction of the last of the Factors Acts, 5 & 6 Vict. c. 39, which was passed to amend and extend the earlier Factors Acts, 4 Geo. 4, c. 83, and G Geo. 4, c. 94. We think, however, that, in order to understand 5 & 6 Vict. c. 39, it is necessary to consider what was the common law before any legislation on the subject, what were the provisions of the two earlier acts, and what had been the judicial decisions upon them. Tlie amount at stake in the present action is large, and renders our decision of importance to the parties. But the general importance of the question as regards the commerce of this countrj' is even greater. It was for this reason, and not from any doubt as to what the decision 450 COLE V. NOETHWESTEKN BANK. [CHAP. III. should be, that tlie court took time to consider their judgment. And for the same reason we now proceed to give our reasons at some length. The 4th edit, of Abbott on Shipping was published before the passing of either of the Factors Acts. Tlie oth edit., the last published in the lifetime of the author, was published before the passing of 5 & G Vict, c. 39 ; but it contahis a valuable abstract of the two earlier Factors Acts, indicating what Lord Tenterden thought w^as their effect. The passage containing his opinion has been suppressed in the sixth and subsecjuent editions of Abbott on Shipping. The 5th edition, in which alone it is to be found, is now out of print : it is worth while, therefore, to quote the whole passage at length ; it will be found in part 3, ch. 9, s. IG, p. 381: — " Lastly we are to consider by wliat acts the right of the consignor may be taken away before the end of the transit. Since the publica- tion of the former editions of this book, this subject has received the attention of the Legislature, and Acts of Parliament have passed by which the matter will in many cases be governed in future. The legis- lative enactments are in part confirmatory of the common law, and in part important alterations of it. The following abstract of them will, it is hoped, be found correct and useful. " The person in whose name goods are shipped is to be deemed the true owner thereof, so far as to entitle the consignee to a lien thereon in respect of any money or negotiable security advanced by him to such person, or received by such person to his use, if he has not notice b}- the bill of lading or otherwise, at or before the advance or receipt, that such person is not the actual and bona fide owner of the goods ; and such person shall be taken for the purposes of the act to have been intrusted with the goods for the purpose of consignment or of sale, unless the contrary be made to appear. So, also, a person intrusted with and in possession of a bill of lading, or of any of the warrants, certificates, or orders mentioned in the act, is to be deemed the true owner of the goods described therein, so far as to give validity to any contract or agreement made by him for the sale or disposition of the goods or the deposit or pledge thereof, if the buyer, disponer, or pawnee has not notice, by the document or otherwise, that such person is not the actual and bona fide owner of the goods. But, if such person deposit or pledge the goods as security for a pre-existing debt or demand, he who so takes the deposit or pledge without notice shall acquire such right, title, or interest, and no further or other, than was possessed by the person making tlie deposit or pledge. And, further, any person may contract for the purchase of goods with any agent intrusted with the goods, or to whom they may be consigned, and receive and pay for the same to the agent, notwithstanding he shall have notice that the party with whom he contracts is an agent, if such con- tract and payment be made in the ordinary and usual course of business, and he has not at the time of tlie contract or payment notice that the agent is not authorized to sell or to receive the price. Also, any person SECT. lY.] COLE v. NOKTHWESTEKN BANK. 451 ma}" accept any goods, or any such document as aforesaid, on deposit or pledge from any factor or agent, notwithstanding he shall have notice that the party is a factor or agent ; but, in such case, he shall acquire such right, title, or interest, and no further or other than was pos- sessed by the factor or agent at the time of the deposit or pledge. " It is, however, provided that the act shall not prevent the true owner of the goods from recovering them from his factor or agent before a sale, deposit, or pledge, or fi'oin the assignees of such factor or agent, in the event of his bankruptcy ; nor from the buyer the price of the goods, subject to any right of set-off on the part of the buyer against the factor or agent ; nor from recovering the goods deposited or pledged, upon repayment of the raone}- or restoration of the negoti- able instrument advanced on the securit}' thereof to the factor or agent ; and upon payment of such further money or restoration of such other negotiable instrument (if any) as may have been advanced by the factor or agent to the owner, or on payment of money equal to the amount of such instrument; nor from recovering from any person any balance remaining in his hands as the produce of a sale of the goods after deducting the money or negotiable instrument advanced on the security thereof. And, in the case of the bankruptcy of the factor or agent, the owner of the goods so pledged and redeemed shall be held to have discharged pro tanto his debt to the estate of the bankrupt. " I am not aware that an}- case has hitherto been decided upon the construction of these enactments. They appear, as I have before ob- served, to be partly a confirmation and partly an alteration of the law ; and, as a knowledge of the former state of the law is often very useful, even after an alteration has been made, it has been thought advisable to retain tlie contents of the last edition on this subject, with a reference to some subsequent decisions." "We agree with Lord Tenterden in thinking that these acts were partly a confirmation and partly an alteration of the law, and that, to understand them, it is necessary to see what the law was before they ■were passed. At common law, a person in possession of goods could not confer on another, either by sale or by pledge, any better title to the goods than he himself had. To this general rule there was an exception of sales in market overt, and an apparent exception where the person in pos- session had a title defeasible on account of fraud. But the general rule was that, to make either a sale or a pledge valid against the owner of the goods sold or pledged, it must be shown that the seller or pledgor had authority from the owner to sell or pledge, as the case might be. If the owner of the goods had so acted as to clothe the seller or pledgor ■with apparent authority to sell or pledge, he was at common law pre- cluded, as against those who were induced bona fide to act on the faith of that apparent authority, from denying that he had given such an authority, and the result as to them was the same as if he had really given it. But there was no such preclusion as against those who had notice that the real authority was limited. 452 COLE V. NORTHWESTERN BANK. [CHAP. III. Aud the possession of bills of lading or other documents of title to goods did not at common law confer on the holder of them any greater power than the possession of the goods themselves. The transfer of a bill of lading for goods in transitu had the same effect in defeating the unpaid vendor's right to stop in transitu that an actual delivery of the goods themselves under the same circumstances would have had. But the transfer of the document of title by means of which actual posses- sion of the goods could be obtained, had no greater effect at common law than the transfer of the actual possession. Lord Tenterden thus states the law : "If the goods were sent to the consignee as a factor, it was thought that his possession of the bill of lading could not in reason give him an}' greater power over the goods before their arrival than his actual possession of them afterwards would do : and as, in the case of actual possession, although a factor might sell the goods and thereby bind his principal because his employment and authority are to sell, but could not pawn or pledge them because he is not by his employment authorized so to do, so, before the arrival of the goods, it was held that he could not divest the consignor's right to stop them by indorsing or delivering over the bill of lading as a pledge."' The proposition that a factor is not by his employment authorized to pawn or pledge goods intrusted to him, was for many years much con- troverted in point of fact. But it having once been decided as a matter of law that he was not so authorized, the courts adhered to what had been decided. The law in this respect has been altered by 5 & 6 Vict. c. 39, as will be shown hereafter ; but the Legislature did not alter it in the first Factors Act, 4 Geo. 4, c. 83, except in the case of consignments by sea. In M'Combie v. Davies, 7 East, 5, the decision went so far as to hold that a pledge by a factor was so totally tortious as not even to transfer the lien wliich the pledgor himself had. This decision is made no longer law by the earlier Factors Acts. The general principle of law, that, where the true owner has clothed any one with apparent authority to act as his agent, he is bound to those who deal with the apparent agent on the assumption that he really is an agent with that authority, to the same extent as if the apparent authority was real, is illusti-ated by two decisions which probably were present to the minds of those who framed 6 Geo. 4, c. 94. In "Wilkin- son V. King, 2 Camp. 335, it appeared that one Ellit was a wharfinger, and was accustomed to sell lead from his wharf. It is not distinctly stated in the report whether these sales were solely of his own lead or also of lead sent to him by others to sell as their factor ; but, as it is expressly mentioned that he had never sold any lead for the plaintiff, it appears probable that he sold for others as factor. The defendant bona Jide bought from Ellit lead belonging to the plaintiff which had been sent to him as wharfinger only. Lord EUenborough ruled that " EUit had no color of authoritv to sell the lead, and no one could SECT. IV.] COLE V. NORTHWESTERN BANK. 453 derive title from such a tortious conversion." And several other cases depending on similar sales by EUit were decided in 1809 and 1810 in the same way. In none of these does there appear to have been any attempt to review in banc the decisions at nisi prius. In Pickering y. Busk, 15 East, 38, in 1812, the plaintiff, the true owner, had purchased the goods through Swallow, who pursued the public business of broker and an agent for sale, and the goods were at the plaintiffs desire transferred into the name of Swallow. It was held that this proved that Swallow had an implied authority' to sell, and consequently that the defendants were justified in buying of Swallow and paying him the price. Lord Ellenborough goes somewhat further. He says : " If a person authorize another to assume the apparent right of disposing of property in the ordinary course of trade, it must be presumed that the apparent author- ity is the real authoritj-. I cannot subscribe to the doctrine that a broker's engagements are necessaril}' and in all cases limited to his actual authority, the reality of which is afterwards to be tried b}- the fact. It is clear that he may bind his principal within the limits of the authority- with which he has been apparently clothed b}- his principals in respect of the subject-matter ; and there would be no safety in mer- cantile transactions if he could not." It is to be observed, however, that the other judges base their judgment on the ground that the cir- cumstances proved in fact an implied authority to Swallow to sell ; and that Lord Ellenborough limits his more extensive doctrine to the case of a person "authorizing another to assume the apparent right of dis- posing of property in the ordinary course of trade," or, in other words, intrusting it to an agent whose business it is to sell : and, on Wilkinson V. King being cited on the argument, he says : " That was the case of a wharfinger whose proper business it was not to sell, and to whom the goods were sent for the mere purpose of custody : " from whence it may be inferred that he limited his general doctrine to cases in which, as in that before him, the goods were intrusted to an agent whose ordi« nary business it was to sell, in the course of his business as such agent, and because he was such agent. And Le Blanc, J., expressly says: "This is distinguishable from all the cases where goods are left in the custody of persons whose proper business it is not to sell." Perhaps, however, the case of Dyer v. Pearson, 3 B. & C. 38, which was decided in 1824, the year before the passing of 6 Geo. 4, c. 94, is that which throws most light on the intention of the legislature. That was trover for wool. Smith, who had sold the wool to the defendant, had been intrusted by the plaintiffs with the bill of lading, for the pur- pose of warehousing the goods, which he did in his own name. There was no distinct evidence that Smith was in the ha1)it of buying or selling wool for others ; and this was relied on in the argument as distinguishing the case from Pickering v. Busk, supra, which was not questioned ; and it was not contended that he in fact had an}' authority from the plaintitfs to sell. Abbott, C. J., had at the trial left the question to the jury whether the defendant had purchased the 454 COLE V. NORTHWESTERN BANK. [CHAP. III. wool under circumstances which would have induced a cautious mac to beUeve that Smith had authority to sell. The jiuy found for the defendant. A new tiial was granted ; and Abbott, C. J., delivering the judgment of the court, says : "Tiie general rule of the law of P2ngland is, that a man who has no authorit}' to sell cannot by making a sale transfer the propert}- to another. There is one exception to that rule, viz. the case of sales in market overt. Now, this being the rule of law, I ought either to have told the jmy, that even if there was an unsuspi- cious purchase by the defendant, yet, as Smith had no authorit}- to sell, they should find their verdict for the plaintiffs, or I should have left it to the jury to sa}' whether the plaintiffs had b}- their own conduct enabled Smith to hold himself forth to the world as having, not the possession only, but the property ; for, if the real owner of goods suffer another to have possession of his propert}' and of those documents which are the indicia of propei'ty, then pevlicqys a sale by such a person would bind the true owner. That would be the most favorable way of putting tlie case for the defendant ; and that question, if it arises rt2')on the evidence, ought to have been submitted to the jury." The legis- lature seem to have intended to declare the law in future on the two points on which in that judgment doubt was expressed, and which I have indicated b}' putting them in italics. When we look at the language used in the two earlier Factors Acts with reference to this state of the law, it seems to us clear that the legislature intended by 4 Geo. 4, c. 83, to alter the law in favor of con- signees, so far as to enact that, where goods were shipped in the names of persons " intrusted for the purposes of sale" with goods, the con- signees might advance mone}' on the secnrit}' of the goods as if the consignors were the true owners, unless the}' had notice to the contrarj- ; with a proviso (which ma}- have some bearing on the construction of s. 4 of 5 & 6 Vict. c. 39) tiiat the persons in whose names such goods are so shipped shall be taken to have been intrusted therewith, unless the contrary " appear or be shown in evidence by any person disputing the fact." And by the 2d section of that act, the legislature repealed M'Combic v. Davies, supra^ in so far as it was applicable to those taking pledges from consignees \ but that act did not alter the estab- lished law as to pledging, with regard to others than consignors and consignees. The G Geo. 4, c. 94, s. 1, re-enacted the 1st section of 4 Geo. 4, c. 83. We are not in the present case concerned with the rights of con- signees, except in so far as the provisions respecting them throw light on the other sections of the Acts. Tlie 2d section of 6 Geo. 4, c. 94, made an important alteration in the law, as b}- it the possession of bills of lading or other documents of title gave a power of selling or pledging the goods to those dealing hoyia fide with the possessor, beyond an}- which either by common law or by any provision of that statute the possession of the goods themselves gave. This solved one of the doubts expressed in Dyer v. Pearson, supra, by enacting that SECT. IV.] COLE V. NORTHWESTERN BANK. 455 the possession of the documents of title might enable the person so possessed to deal with others as if he were the owner of the goods. It was confined, however, to the possession by "persons intrusted with" these documents of title ; on which words a construction was put by the courts in the two cases of Phillips v. Huth, 6 M. & W. 572, and Hatfield V. Phillips, 9 M. & W. 647 ; 12 CI. & F. 343. The & 6 Vict. c. 39, in consequence of these decisions, altered the law as to what should constitute intrusting. The 2d section of 6 Geo. 4, c. 94, also contained a proviso that the purchaser or pledgee had not notice, by the documents or otherwise, that the seller or pledgor was not " the actual and bona fide" owner of the goods sold or pledged, — a proviso which, especially after the decision of Hetcher V. Heath, 7 B. & C. 517, rendered it unsafe to make advances on goods or documents to persons known to have possession thereof as agents onl}-. This also has been altered by 5 & 6 Vict. c. 39. But, in the 4th section of 6 Geo. 4, c. 94, the language used by the legis- lature is completely changed. It does not in this section give an}' power to pledge at all ; nor does it use the language of the 2d section, and authorize " any person intrusted with the possession of the goods " to sell them to way one not having notice that this person is not the true owner; but it enacts that it shall be lawful to contract with " any agent" intrusted with any goods, or to whom the}' may be consigned, for the purchase of such goods, and to pay for the same to "such agent ; " and sucli sale and pa^'ment is to be good, notwithstanding the purchaser has notice that the party selling or receiving payment is only an agent ; provided such contract or payment is made in the usual course of business, — a proviso which b}' itself alone shows that the legislature meant b}- the word "agent" onl}' such agents as in the usual course of business sell goods for their principals and receive pay- ments, such as factors, brokers, &c., and did not mean to include bailees, warehousemen, carriers, and others who may in one sense no doubt be called agents, but who do not sell or receive payment for goods intrusted to them b}- those employing them. It therefore solves the second doubt in Dyer v. Pearson, supra^ by declaring that, if the evidence should be such as to show that the person in possession of the goods was intrusted as " an agent," a sale by him should bind the true owner. Then follows a further proviso, that the person dealing with the agent has not notice that the agent is not authorized to sell or receive pay- ment. This latter proviso shows tliat the framer of the act remembered that a factor might, as between him and his principal, be restrained from selling except on particular terms, or possibly forbidden to sell at all, and 3-et that the sale on tlie usual terms, though in contravention of those secret instructions, would be good as regards those who had not notice of this restriction, but bad as regards tliose who had. It seems to us, tlierefore, that the legislature b}' tliis section intended to confirm (to use Lord Tenteiden's expression) the common law as 456 COLE V. NORTHWESTERN BANK. [CHAP. III. laid clown in Pickering v. Busk, sitjyra, but did not mean to extend it to all cases in nhicb any person is intrusted with the custody of goods, though that person may in one sense be an agent for the intruster. And it seems to us that, on the construction of the act, and without reference to authority, it must be intended to apph' only to eases in which the intrusting is in the course of that kind of agenc}', so as to create the relation of principal and agent between the intruster and the intrusted. In effect, that the decision in Wilkinson v. King, supra, was not overruled or shaken in Pickering v. Busk, supra, and was not in- tended to be affected by the legislature. For example, if a furnished house be let to one who carries on the business of an auctioneer, he is intrusted as tenant with the furniture, being in fact an auctioneer : but it never was the common law, and could not be intended to be enacted, that if he carried the furniture to his auction room and there sold it, he could confer any better title on the purchaser than if he had as auc- tioneer acted for some other tenant who committed a similar larcen}', as a fraudulent bailee : nor, to come nearer to the present case, that a warehouseman or wharfinger who as such is intrusted with the custody of goods, if he happens also to pursue the trade of a factor, can give a better title by the sale of the goods than he could if the}' had been intrusted to some other warehouseman who employed him to sell. This was the construction put upon the act in Monk v. Whittenbur}', 2 B. & Ad. 484, decided in 1831 : and that decision has never been questioned. That decision was before 5 & 6 Vict. c. 39 : and the legis- lature might easily have altered the enactments, if they had been so minded, so as to avoid the effect of that decision, as they did alter them so as to avoid the effect of other decisions. The 5 & 6 Vict. c. 39, commences witli a preamble; and though, of course, the enacting part may either go further than or fall short of effecting what is recited in that preamble as being tlie object of the legislature, that preamble is of great importance. It first recites that, under 6 Geo. 4, c. 94, " and the present state of the law, advances cannot safely be made upon goods or documents of title to persons known to have possession as agents only." This points to Fletcher v. Heath, supra, and shows an intention to alter the law as there decided. It then recites that " advances on the security of goods and merchan- dise have become an usual and ordinary course of business, and it is expedient and neccssar\- that reasonable and safe facilities should be afforded thereto, and that the same protection and validitj- should be extended to bona fide advances upon goods and merchandise as by the said recited act is given to sales, and that owners intrusting agents with the possession of goods and merchandise, or of documents of title thereto, should in all cases where such owners b}- the said recited act or otherwise would be bound by a contract or agreement of sale, be in like manner bound by any contract or agreement of pledge or lien for any advances bona fide made on the security thereof." This recital shows a plain intention to enact that what had, ever SECT, IV.] COLE V. NORTHWESTERN BANK. 457 since the case of Paterson v. Tash, 2 Str. 1178, been the law, should no longer be so ; and that an agent having power to sell should be also enabled to pledge. But there is no indication of any intention to give a power to pledge where there is not power to sell ; nor to extend the power to sell bej'ond that which by the common law and 6 Geo. 4, c. 94, s. 4, was given ; nor to alter the construction put upon that enact- ment by the decision in Monk v. Whittenbury, supra. There is a further recital, that the act does not extend to protect exchanges of securities bona fide made. This refers to Taylor v. Kymer, 3 B. & Ad. 320, and perhaps Bonzi v. Stewart, 4 M. & G. 295, though that latter case (after very protracted litigation) was not decided till a few weeks before 5 & 6 Vict. c. 39 received the Royal assent, and this recital shows an intention to alter the law as there decided. There is no express recital pointing to the decision in Phillips v. Huth, siqjra, and the case of Hatfield v. Phillips, supra., which had then been decided in the Exchequer Chamber and was still pending in the House of Lords ; but, from the enactment in the 4th section, it is plain that these cases were in contemplation, and that it was intended to alter the law as laid down in those cases. The legislature then proceed in the first section to enact that " any agent " who shall thereafter be intrusted with the possession of goods, or of the documents of title to goods, may pledge the same. The legis- lature, it is to be observed, does not use the words " person intrusted," which are those used in the 2d section of 6 Geo. 4, c. 94, but '' agent intrusted," being the words used in the 4th section of the act, on which words a judicial construction had been put in Monk v. Whitten- bury, supra. The 2d section alters the law as declared in Taylor??. K3'mer, supra. The 4th section alters the law as laid down in Phillips v. Huth, su])7'a, by enacting "• that any agent intrusted as aforesaid and in possession of any such documents of title, whether derived immediately from the owner of such goods or obtained b}' reason of such agent's having been intrusted with the possession of the goods or of anj' other document of title, shall be deemed and taken to be intrusted with the possession of the goods : . . . and an agent in possession as aforesaid of such goods or documents shall be taken, for the purposes of this act, to have been intrusted therewith by the owner thereof, unless the contrary can be shown in evidence." It is not necessary to notice any other parts of the act. Mr. Benjamin argued that the object of the legislature was, to afford facilities for safely making advances; and that this object was only imperfectl}^ carried out if an advance made under such circumstances as the present was not protected. He argued that the defendants had no means of knowing whether Slee was possessed as a warehouseman or as a broker. As far as regards the mohair, this argument fails in fact ; for a ver}' little inquiry would have made the defendants aware that Slee was not a broker for mohair at all. As regards the sheep's 458 COLE V. NOKTHWESTERN BANK. [CHAr. III. wool, liowovcr, there is force in the argument that the defendants might, witliout mucli negligence, be led by Slee to believe that he was intrusted with the sheep's wool as a broker. But, if the plaintiffs knew that tlie warehouseman whom they trusted was also a wool-broker, the defendants were aware that the wool-broker whom they trusted was also a warehouseman ; and there seems no I'eason why without inquiry they should think he was intrusted in one capacity rather than the other. Probably 5 & 6 Vict. c. 39, s. 4, requires us to treat him as being so intrusted, unless the contrary is shown in evidence. But we are all of opinion that in this case the plaintiffs have shown in evidence that Slee was not intrusted as broker, but solel}- as warehouseman. We do not think that the legislature wished to give to all sales and pledges in the ordinary course of business the effect which the common law gives to sales in market overt. If such had been their object, it could easily have been so enacted in terms ; which certainly has not been done. The general rule of law is, that, where a person is deceived by another into believing he may safely deal with propert}', he bears the loss, unless he can show that he was misled by the act of the true owner. The legislature seem to us to have wished to make it the law, that, where a third person has intrusted goods or the documents of title to goods to an agent who in the course of such agency sells or pledges the goods, he should be deemed by that act to have misled an}' one who bona fide deals with the agent and makes a purchase from or an advance to him without notice that he was not authorized to sell or to procure the advance. And we think that, if this was the intention, it is carried out hy the enactments. We do not think that it was wished to make the owner of goods lose his property if he trusted the l)osscssion to a person who in some other capacitj' made sales, in case that person sold them. If such was the wish of those who framed the act, we think they have not used language sufficient to express an inten- tion so to enact. Hitherto we have been considering the Statute 5 & 6 Vict. c. 39 as if we had to construe its language for the first time, without the assistance of any decided cases. AVe think, however, that every case that has been decided since the passing of the statute confirms our view. In Wood v. Rowcliffe, 6 Hare, 183, Wigram, V. C, held that a person intrusted to keep in lier own house furniture belonging to the plaintiff, though in one sense an agent for the owner, was not an agent within the meaning of the act, and consequentlj' could not make a good pledge. In Lamb v. Attenborough, 1 B. & S. 831 ; 31 L. J. (Q. B.) 41, it was held that a clerk, who as such was possessed of delivery orders, was not an agent intrusted within the meaning of the act, and could not make a good pledge. In Heyman v. Flewker, 13 C. B. (N. S.) 519 ; 32 L. J. (C. P.) 132, Willes, J., in delivering judg- ment, says that what the cases decide "ma}' be stated tiius, — that the term ' agent' does not include a mere servant or care-taker, or one who SECT. IV.] COLE V. NOKTHWESTEKN BANK. 459 has possession of goods for carriage, safe custody, or otlierwise as an independent contracting party ; but only pei'sons whose employment corresponds to that of some known kind of commercial agent like that class (factors) from which the act has taken its name." So, it has been repeatedly decided that a sale or pledge of a delivery order or other document of title (not being a bill of lading) by the vendee does not defeat the unpaid vendor's rights, because the vendee is not in- trusted as an agent : Jenkyns v. Usborne, 7 M. & G. 678 ; M'Ewan v. Smith, 2 H. L. C. 309. And it may be observed that, in many of such cases, in which money has been advanced to the buyer on the faith of the document of title, the bu^'er must have been a person who carried on business as a commission-merchant ; yet it never seems to have occurred to any one that that fact made any difference. So, it has been repeatedl}' held that, where either the goods or documents of title are ol)tained from the owner (not on a contract of sale good till defeated, Ihough defeasible on account of fraud, but by some trick), a purchaser or pledgee acquires no title, for the trickster is not " an agent intrusted" with the possession : Kingsford v. Merr}', 1 H. & N. 503 ; 26 L. J. (Ex.) 83 ; Hardman v. Booth, 1 H. & C. 803 ; 32 L. J. (Ex.) 105. Quite consistently with these latter decisions it was held, first b}' the Exchequer, on demurrer, in Sheppard v. Union Bank of London, 7 H. & N. 661 ; 31 L. J. (Ex.) 154, and afterwards b}' the Court of Queen's Bench, on the facts, in Baines v. Swainson, 4 B. & S. 270; 32 L. J. (Q. B.) 281, that, if the true owner did in fact intrust the agent as an agent, though he was induced to do so bj- fraud, a pledge bj' the agent would be good. In Fuentes v. Montis, Law Rep. 3 C. P. 268 ; Law Rep. 4 C. P. 93, it was decided, first by the Common Pleas, and afterwards by the Exchequer Chamber, that, after the true owner had demanded back his goods from the factor, who wrongfully refused to give them up, the factor ceased to be "intrusted," and a pledge subsequently made by him was not good. In delivering judgment, Willes, J., speaks of Baines V. Swainson, supra, as going to the extreme of the law, but does not express dissent from it. Against this great mass of authority, ]\Ir. Benjamin could produce nothing but some observations of Lord Westbury in Vickers i'. Hertz, Law Rep. 2 H. L. Sc. 113 ; but we think, when those are rightly under- stood, they are not in conflict with the other decisions. The facts in Vickers v. Hertz bear a very close resemblance to those in Baines v. Swainson, supra. Campbell, who was a Glasgow broker, had repre- sented to Vickers that ho had made for him a sale to a principal of a large quantity of iron. This, it seems, was a falsehood. Vickers was induced by the falsehood to send a delivery-order to Campbell. He did not intrust him with the deliver3'-order with a view to his making a sale, for he thought it was already made ; but he did intrust him m the course of his business as agent with the document of title, that he might as such agent deliver the goods. The decision of the House of 460 JOHNSON V. CREDIT LYONNAIS CO. [CHAP. III. Lords was, that a pledge by Campbell was good under the Factors Acts. Lord Westbur}- seems to have understood Willes, J., in Fuentes V. Montis, supra^ as expressing an opinion that the act did not embrace the case of any but a factor who was intrusted for the purpose of effect- ing a sale not yet made. Had Willes, J., expressed such an opinion, it would, no doubt, have been inconsistent with Baines v. Swainson, siqyra, and been overruled by the House of Lords in Vickers v. Hertz. We think, however, that he expressed no such opinion, and, conse- quentl}', that all the authorities are in unison with the decision of the Common Pleas in this case, which we therefore affirm. Judgment affirmed} JOHNSON V. CREDIT LYONNAIS COMPANY. In the Common Pleas Division, Court of Appeal, December 1, 1877. [Reported in 3 Common Pleas Division, 32.] CocKBURN, C. J. These cases come before us on appeal : the first from a judgment of Mr. Justice Denman, after a trial before himself without a jur}' ; the second from a judgment of Mr. Justice Field, after a trial with a jury. The facts, as well as the questions of law arising thereupon, were the same in both actions. The facts were as follows : — One Hoffmann, a broker in the tobacco trade, but who also dealt in tobacco as an importing merchant, having imported a quantity of that article, left it in bond in the warehouses of the St. Katharine's Dock Com- pany', receiving the usual dock warrants ; and the tobacco was entered in the books of the companj' as that of Hoffmann. This tobacco Hoffmann sold to the plaintiff, who carried on the busi- ness of a tobacco manufacturer at Bolton, in Lancashire ; but it not suiting the plaintiff's purpose to take the tobacco out of bond, which would have involved the necessit}- of paying the duty before he wanted the tobacco, he did what it appears is frequently, but not alwaj-s, done in the tobacco trade by purchasers, in order to avoid the immediate pa}'- ment of the duty : he left the tobacco in bond in the name of Hoffmann, and left the dock warrants in Hoffmann's hands, and took no steps to have any change made in the books of the dock company as to the ownership of the goods. According to the plaintiff's statement, he was ignorant of the fact that, when goods are thus deposited in the warehouses of the dock company, dock warrants are issued to the party depositing, which rep- resent the goods, and are capable of being transferred, so as to enable the transferee to obtain possession of the goods. ^ Bramwell, B., delivered a brief concurring opinion. SECT. IV.] JOHNSON V. CREDIT LYONNAIS CO. 461 Being thus the ostensible owner of the tobacco, Hoffmann fraudu- lently obtained advances, on the pledge of a portion of it, from the Credit Lyonnais Compan}-, the defendants in one of these actions, and from Bliimenthal, the defendant in the other ; both these parties acting in perfect good faith, under the belief, induced by his being in possession of the goods and of the indicia of ownership, that Hofl'uianu was the owner of the tobacco. Each of the defendants, on the completion of the transaction, proceeded to do that which, as it seems to me, the plaintiff, as a matter of common prudence, should have done. They caused the entry of the goods to be transferred from the name of Hoffmann to their own in the books of the dock company, and took fresh dock-war- rants from the company, giving up the former ones. The transactions between Hoffmann and the defendants were wholly unknown to the plaintiff. He further stated, as I have already mentioned, and the state- ment does not appear to have been questioned, that he was unaware of the practice of giving dock-warrants as evidence of the title of the party to whom the}' are given, or of the transfer of such warrants on alienation of the propert}-. Upon this state of facts, Mr. Justice Denman, in the action against the Credit Lyonnais Company, gave judgment in favor of the plaintiff for the value of the tobacco pledged to the defendants. In the action against Bluraenthal — tlie defence on the ground of estoppel or negU- gence having been abandoned by the counsel for the defendants — Mr. Justice Field put the question to the jury whether authority, or osten- sible authority, had been given by the plaintiff to Hoffmann to deal ■with the goods as owner, or to pledge them as agent ; and on the jur}- answering in the negative, gave judgment in like manner for the plaintiff. Two questions are raised by the defendants : the first, whether the case comes within the Factors Acts; the second, whether the conduct of the plaintiff in leaving the indicia of title in Hoffmann's hands, and thus enabling him to obtain money on the security of this tobacco, has been such as to disentitle him to recover its value from the defendants. Upon the first question, namely, whether the case comes within the Factors Acts, I entertain no doubt. I consider it to be settled by the authority of decided cases ; but I may add that if the question had pre- sented itself now for the first time, it being clear to my mind that Hoff- mann was not " intrusted " with these goods, or with tlie documents of title relating to them, as agent to sell or consign, or indeed as agent in any sense, but stood only in the position of a paid vendor remaining in possession of the thing sold till it suited the convenience of the buyer to accept delivery, I should have had no hesitation in arriving at the same conclusion. The otlior question, namely, whether the plaintiff, having not only by leaving the goods in the possession of Hoffmann, but also by leaving with him iheindicia of ownership, enabled him to dispose of the goods, as apparent owner, to the defendants, can recover the value from them. 462 JOHNSON V. CREDIT LYONNAIS CO. [ciIAr. III. is a far more difficult question, and one on which I have entertained considerable doubt. That lloiruuuin having thus, by being left in undisturbed possession of the goods and the indicia of ownership, — there having been nothing to raise a doubt as to the latter, or an\- means open to the defendants to ascertain the fact, — been enabled to defraud one of two innocent parties, when the question arises as to which of them the loss should fall upon, in reason and justice the loss ought to fall on him who might have prevented, and as a matter of common prudence ought to have prevented, the possibility of the fraud, is what I cannot bring myself to doubt. And I am strongly fortified in this view by the fact that, as soon as the decisions here appealed from had been made public, the legislature by statute (-iO & 41 Vict. c. 39) at once proceeded to settle the question in that view in the future by applying the protection given by the Factors Acts to persons acquiring title from agents, to innocent parties purchasing or making advances in such cases as the present. Whether, prior to and independently of such legislation, the law as it stood would have afforded protection, is a diffei-ent matter. I have come, though, I confess, with reluctance, to the conclusion that, as the law stood, this action could not be resisted, and consequently that this appeal must be dismissed. The case for the plaintiff rests on the general proposition of law — which as a general proposition cannot be contested — that the mere possession of the property of another, without autliority to deal with the thing in question otherwise than for the purpose of safe custody, as was the case here, will not, if the person so in possession takes upon himself to sell or pledge to a third part}-, divest the owner of his rights as against the third party, however innocent in the transaction the latter party may have been. The defendants, on the other hand, insisted on two grounds as tak- ing the case out of the general rule : first, that the plaintiff, by leaving the possession of the goods and the indicia of property in the hands of Hoffmann, had enabled the latter to pledge the goods to them, and was therefore estopped from denying the right of Hoffmann so to deal with them ; secondl}-, that, even if the property in the tobacco still remained in the plaintiff, so as to entitle him to recover its value ; on the other hand, the plaintiff had, in the conduct in question, been guilty of neg- ligence by which the defendants had been induced to deal with Hoff- mlinn as the owner of the tobacco, and to pay him for it ; by reason of which they were entitled to recover back the amount by way of counter- claim, or what would come to the same thing, to set it off in the present action. There have been, no doubt, decisions which would at first sight appear to fiivor the first of these contentions, but they are, I think, distinguishable from the ease before, us. In Pickering v. Busk, 15 East, 38, the purchaser of hemp lying at a wharf had himself directed the hemp to be transferred in the wharfinger's books into the name SECT. IV.] JOHNSON V. CREDIT LYONNAIS CO. 4G3 of the broker who bad bougbt it for him. It was held that from this an authority to the broker to sell might be implied, though no such authoritj' had in fact been given, and that his sale and receipt of the money, though fraudulent as to his principal, nevertheless bound the latter. " The sale," said Lord Ellenborough, " was made bj' a person who had all the indicia of property ; the hemp could only have been transferred into his name for the purpose of sale ; and the party who has so transferred it cannot now rescind the contract. If the plaintiff had intended to retain the dominion over the hemp, he should have placed it in the wharfinger's books in his own name." And Bayley, J., says : " It may be admitted that the plaintiff did not give the broker any authority to sell. But an implied authority may be given ; and if a person puts goods into the custody of a vendor, whose common busi- ness it is to sell, without limiting his authority, he thereby confers an implied authority upon him to sell them." This language might ap- pear to be applicable to the present case ; but there is a material dif- ference between the two cases. In Pickering v. Busk, siq:)r a, the purchaser had himself expressly directed that the goods should be entered in the broker's name. In the present case the plaintiflT has sim- ply remained passive. He has left things as he found them at the time of his purchase. The same observation will apply to the case of Boyson v. Coles, 6 M. & S. 14, a case which arose prior to the passing of 6 Geo. 4, c. 94, and in which goods had been pledged by a person alleged to have been a factor, but in which the defence was that the plaintitfs had dealt with the broker as purchaser, or, at all events, by the documents which had passed between them had enabled him to appear as such to others, Lord Ellenborough left to the jury whether the plaintiffs had dealt with the parties pledging as purchasers of the goods, or as brokers, directing them that, "if as brokers, the latter had no right to pledge the goods to the defendant, unless the jury considered that the plaintiffs had armed tliem with such indicia of property as to enable them to deal with it to others as their own ? " A new trial was applied for, but this ruling was not quarrelled with. On the argument on the rule, Abbott, J., approves of the qu(^stions left to the jury, one of them, he says, being " whether the plaintiffs had by their own acts enabled Coles Brothers (the brokers) to hold themselves out as the purchasers, and thus to induce the defendant to advance his money on the credit of the goods." In Dyer v. Pearson, 3 B. & C. 38, where a similar question arose, Abbott, C. J., told the jury " that if a man takes u[)on himself to pur- chase from another under circumstances wiiicli ought to liave excited his suspicion, and induced him to distrust the authority of the person selling, such a purchaser could not hold the property if it afterwards turned out that the person from whom he bought had no authority to sell ; and he lyft it to the jury to say, whether the defendant had pur- chased under circumstances which would have induced a reasonable, 4G4 JOHNSON V. CREDIT LYONNAIS CO. [CHAP. III. prudent, and cautious man to believe that Smith, of whom he pur- chased, had authority to sell. If the}' thought that he had purchased under such circumstances, the}' were to find for the plaintiffs." This ruling was held to amount to misdirection, and a new trial was granted. *' The question," says the Chief Justice, " which I left to the consid- eration of the jur}' does not appear to me to have embraced the whole case. The general rule of the law of England is that a man who has no authority to sell cannot, by making a sale, transfer the property to another. There is one exception to that rule, viz., the case of sales in market overt. This was not a sale in market overt, and therefore does not fall Mithin the exception. Now, this being the rule of law, I ought either to have told the jury that even if there was an unsuspicious purchase b}' the defendants, yet as Smith had no authority to sell, the}' should find their verdict for the i)laintifrs ; or I should have left it to the jur}' to say whether the plaintiffs had, b}' their own conduct, enabled Smith to hold himself forth to the world as having, not the possession onl}', but the propert}' ; for if the real owner of goods suffer another to have possession of his property, and of those documents which are the indicia of property, then perhaps a sale by such a person would bind the true owner. That would be the most favorable wa}' of putting the case for the defendants, and that question, if it arises upon the evidence, ought to have been submitted to the jury." It is to be observed that the Chief Justice here states the proposition in anything but positive terms. No further mention of the case appears in the reports, and we are consequently not informed what became of it on the new trial, the rule for which was made absolute. Mr. Chitty, however, in his work on Contracts (10th ed. p. 355), referring to these cases, writes thus : " It is said that if the real owner of goods suffers another to have possession thereof, or of those documents which are the iiuUcla of propert}' therein, there b}' enabling him to hold himself forth to the world as having, not the possession onlj-, but the property, a sale by such a person without notice will bind the true owner." But he adds this qualification : " But probably this proposition ought to be limited to cases where the person who had the possession of the goods was one who, from the nature of his employment, might be taken prima facie to have had the right to sell." The law, as thus stated, was approved by the Court of Exchequer in Higgins v. Burton, 26 L. J. (Ex.) 342. But the present question was not before the court in the latter case, the question there being whether a person who had bought goods in the name of A., fraudulently representing himself as A.'s agent, and had thus obtained possession of the goods, could pledge them so as to give a title to the pledgee as against the real owner. And it was held, following Kingsford v. Merry, 11 Ex. 577, that he could not. Sitting here in a Court of Appeal, I feel myself at liberty to say that these authorities fail to satisfy me that at common law the leaving by a vendee goods bought, or the documents of title, in the hands of the vendor till it suited the convenience of the former to take possession SECT. IV.] JOHNSON V. CREDIT LYONNAIS CO. 465 of them, would, on a fraudulent sale or pledge by the party so pos- sessed, divest the owner of his property, or estop him from asserting his right to it. If this had been so, there would have been, as it seems to me, no necessity for giving effect by statute to the unauthorized sale of goods by a factor. The doctrine established in Pickard v. Sears, 6 A, & E. 4G9, and Freeman v. Cooke, 2 Ex. 654, 18 L. J. (Ex.) 114, and the subsequent cases which have proceeded on the same principle, carry the case no further. In all the cases decided on this principle, in order that a party shall be estopped from denying his assent to an act prejudicial to his rights, and which he might have resisted, but has suffered to be done, it is essential that knowledge of the thing done shall be brought home to him. Here it is clear that the plaintiff had no knowledge whatever of the advances obtained by Hoffmann on the security of the goods, or even of the existence of the dock-warrants which made Hoffmann appear to be the owner. It would be to carry this doctrine much too fjir to apply it where advantage has been taken of a man's remissness in looking after his own interests to invade or encroach upon his rights, in the absence of knowledge on his part of the thing done, from which his assent to it could reasonably be implied. The defence, founded on the allegation of negligence, remains to be considered. That the plaintiff, in omitting to have the goods transferred to his own name, and to have the dock-warrants delivered over to him, was wanting in common prudence, in other words, was guilty of negligence, I cannot bring myself to doubt, and I am strongly confirmed in this view by the passing of the recent statute, as the legislature must have proceeded on the view that there is default in the owner in such a case. It appears to me no answer to sa}- that he was ignorant of dock- warrants being issued in respect of goods warehoused in the docks. A man who deals in a given market should make himself acquainted with tlie course of business prevailing there. Moreover, he knew that the tobacco was warehoused in the bonded warehouses of the company. He must have known that the goods would stand in the books of the company as the goods of Hoffmann. He should at least have taken care to have them transferred into his own name. It is no answer, as it seems to me, to say that it is common in the trade for buyers of tobacco to leave the goods and the indicia, of title in the hands of tlie seller, and that hitherto no dishonest advantage has been taken of the opportunity thus afforded for fraud. The mercantile community are as a body honorable men ; but experience unfortunately tells us that frauds occasionally happen where they might least be expected. Tiie case of Goodwin 7j. R()l)arts, Law Rep. 10 Ex. 337, which was recently l)efore the courts, affords an example, and other instances of a similar character occur in the books. In the majority of instances this occurs, as in this case, from the carelessness of those concerned, and the omis 466 JOHNSON V. CREDIT LYONNAIS CO. [CHAP, III. sion to take the precautionary measures wliich the regular course of business would prescribe. This manner of proceeding is not the less imprudent and negligent because a number of persons, confiding in the honesty of those with whom they have dealings, think proper, in order to save themselves trouble, to expose themselves to a like risk. Evidence was gone into at the trial of what was called the " prac- tice " in the tobacco trade of following the course pursued in the present instance bj' the plaintiff, viamely, that of leaving, on the purchase of tobacco in bond, the tobacco and the dock-warrants in the hands of the seller, — whether, with the view of meeting the allegation of negligence, or as a substantive answer in point of law to the defendant's claim, as amounting to a usage of trade, it may be difficult to sa}'. If the former, I have given the answer which occurs to me, namely, that that which would be negligence in one does not become the less so because others are equally negligent. If the latter, two answers present themselves. First, a practice, to amount to a usage of trade, must be general and uniform. But of this the evidence falls altogether short. The plain- tiff's witnesses, called to prove the practice, while they asserted that the practice was common, fully admitted that there were many houses in the trade who, when they bouglit tobacco under similar circum- stances, insisted on having the indicia of title made over to them. Nor did these witnesses for a moment deny that a purchaser was entitled to have such a demand complied with. This being so, any assertion of usage of trade necessarily fails. But, besides this, a usage of trade, like any other custom, to be valid must be reasonable. But a usage cannot be said to be reasonable which enables a dishonest vendor, tin-ough the negligence of his ven- dee, to defraud a second purchaser, or a pledgee, by a pretended sale or pledge. But whether this negligence of the plaintiff will, under the circum- stances, give to the defendants any ground of complaint which can be enforced in point of law, is a very different question. Negligence, to afford a ground of action to one who has suffered from it, must have reference to some duty which the party guilty of the negligence owed to him. The law is, in my opinion, correctly stated by Blackburn, J., in Swan V. North British Australian Company, 2 H. & C. 175, at p. 181 ; 32 L. J. (Ex.) 273, at p. 276, where, after referring to what was said by Parke, B., in Freeman v. Cooke, 2 Ex. 654, 18 L. J. (Ex.) 114, namely, that " negligence to have the effect of estopping the party must be the neglect of some duty cast upon the person guilty of it," he goes on to say : " This, I apprehend, is a true and sound principle. A person who does not lock up his goods, which are consequently stolen, may be said to be negligent as regards himself; but, inasmuch as he neglects no duty which the law casts upon him, he is not in conse- quence estopped from denying the title of those who may have, how- ever innocently, purchased those goods from the tliief, except in market overt." The same principle would obviously apply to the case of SECT. IV.] ENGLISH STATUTES. 467 goods fraudulentl}- soid or pledged b}- a person left in possession of them. The rule thus laid down is applicable here. The plaintiff ma>' have been negligent, and his negligence may have brought on the de- fendants the loss of the money they have advanced. But the plaintift owed no duty to the defendants, — at least no duty which the law can recognize, — either as individuals or as members of the general public. The case of Young v. Grote, 4 Bing. 253, is, as was pointed out in the case just referred to, plainly distinguishable. For, there, there was a duty on the part of the customer to use due care in drawing the cheek, so as to protect the banker against the risk of forgery in the amount for which the check was drawn. This being so, I am of opinion that the negligence of the plaintiff neither estops him from claiming the goods in question from the defend- ants, nor gives the latter a counter-claim for the money which they have advanced to Hoffmann on the security of the goods. I am therefore of opinion that the judgment of Mr. Justice Denman in the case of Johnson v. Credit Lyonnais Company, 2 C. P. D. 224, should be affirmed. With regard to the judgment of Mr. Justice Field in Johnson v. Blu- menthal, I feel bound to say that the question put to the jury, as I understand at the instance of counsel, and the answer given to it do not appear to me to be conclusive of the case or sufficient to found the judgment ; and if there were an}' material fact in dispute, I should think it necessary to send the case back to a new trial. But as, upon the admitted facts, the plaintiff is, for the reasons I have given, in my opinion, entitled to judgment, a new trial would be useless and un- necessary. In this action also, therefore, I think that the appeal should be dismissed and the judgment affirmed. Judgments affirmed. 40 AND 41 VICTORIA, Cap. 39. An Act to amend the Factors Acts. II. Where any agent or person has been intrnsted with and continues in the pos- session of any goods, or documents of title to goods, within the meaning of the prin- cipal Acts as amended by tliis Act, any revocation of liis intrustmont or agency shall not prejudice or affect the title or rights of any other person who, without notice of such revocation, purchases such goods, or makes advances upon the faith or security of such goods or documents. III. Where any goods have been sold, atid the vendor or any person on his behalf continues or is in possession of the documents of the title thereto, any sale, pledge, or other disposition of the goods or documents made by sucli vendor or any person or agent intrusted t)y the vendor witli the goods or documents within the meaning of the principal Acts as amemlod by tliis Act so continuing or being in possession, shall be as valid and effectual as if such vendor or person were an agent or person intrusted by the vendee with the goods or documents within the meaning of tlic principal Acts as amended by this Act, provided tlie person to whom tlic sale, pledge, or other disposition is made has not notice that the goods have been previously sold. 4G8 THE FACTORS ACT. [CHAP. III. IV. Where any goods have been sold or contracted to be sold, aud the vendee, or any person on his behalf, obtains the possession of the documents of title thereto from the vendor or liis agents, any sale, pledge, or disposition of such goods or documents by such vendee so in possession or by any other person or agent intrusted by the vendee with the documents witliiu the meaning of the principal Acts as amended by this Act shall be as valid and effectual as if such vendee or other person were an agent or per- son intrusted by the vendor with the documents within the meaning of the principal Acts as amended by this Act, provided the person to whom the sale, pledge, or other disposition is made has not notice of any lien or other right of the vendor in respect of the goods. V. Where any document of title to goods has been lawfully indorsed or otherwise transferred to any person as a vendee or owner of the goods, and such person transfers such document by indorsement (or by delivery where the document is by custom, or by its express terms transferable by delivery, or makes the goods deliverable to the bearer) to a person who takes the same bona Jide and for valuable consideration, the last-mentioned transfer shall have the same effect for defeating any vendor's lien or right of stoppage in transitu as the transfer of a bill of lading has for defeating the right of stoppage in transitu. THE FACTORS ACT, 1889. (52 §- 53 Victoria, C. 45.) An Act to Amend and Consolidate the Factors Acts. Be it enacted by the Queen's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal and Commons in this present Parliament assembled, and by the authority of the .same, as follows ; — 1. For the purposes of this Act. (1 ) The expression " mercantile agent " shall mean a mercantile, agent having in the customary course of his business as such agent authority either to sell goods or to consign goods for the purpose of sale, or to buy goods or to raise money on the security of goods: (2) A person shall be deemed to be in possession of goods or of the documents of title to goods, where the goods or documents are in his actual custody or are held by any other person subject to his control or for him or on his behalf : (3) The expression " goods " shall include wares and merchandise ; (4) The expression " document of title " shall include any bill of lading, dock-warrant, warehouse-keeper's certificate, and warrant or order for the delivery of goods, and any other document used in the ordinary course of business as proof of the possession or control of goods;, or authorizing or purporting to authorize, either by indorsement or by delivery, the possessor of the document to transfer or receive goods thereby represented ; (5) The expression " pledge " shall include any contract pledging, or giving a lien or security on, goods, whether in consideration of an original advance or of any further or continuing advance or of any pecuniary lia- ])ility (6) The expression " person " shall include any body of persons corporate or uuincorporate. 2. (1) Where a mercantile agent is, with the consent of the owner, in posse.ssion of goods or of the document of title to goods, any sale, pledge or other disposition of the goods made by him, when acting in the ordinary course of business of a mercantile agent, shall, subject to the provisions of this Act, be as valid as if he were expressly authorized by the owner of the goods to make the same ; provided that the person taking under the disposition acts in good faith, and has not at the time of the disposi- tion notice that the person making the disposition has not authority to make the same. (2) Where a mercantile agent has, with the con,sent of the owner, been in pos.session of goods or of the documents of title to goods, any sale, pledge, or other disposition, which would have been valid if the consent had continued, shall be notwithstanding the determination of the consent : provided that the person taking under the dispo- sition has not at the time thereof notice that the consent has been determined SECT. IV.] THE FACTORS ACT. 4G9 (3) Where a mercantile agent has obtained possession of any documents of title to goods by reason of his being or having been, with the consent of the owner, in possession of the goods represented thereby, or of any other documents of title to the goods, his pos- session of the first mentioned documents shall, for the purposes of this Act, be deemed to be with the consent of the owner. (4) For the purposes of this Act the consent of the owner shall be presumed in the absence of evidence to the contrary. 3. A pledge of the documents of title to goods shall be deemed to be a pledge of the goods. 4. Where a mercantile agent pledges goods as security for a debt or liability due from the pledgor to the pledgee before the time of the pledge, the pledgee shall ac- quire no further riglit to the goods than could have been enforced by the pledgor at the time of the pledge. 5. The consideration necessary for the validity of a sale, pledge, or other disposition, of goods, in pursuance of this Act, may be either a payment in cash, or the delivery or transfer of other goods, or of a document of title to goods, or of a negotiable security, or any other valuable consideration ; but where goods are pledged by a mer- cantile" agent in consideration of the delivery or transfer of other goods, or of a docu- ment of title to goods, or of a negotiable security, the pledgee shall acquire no right or interest in the goods so pledged in excess of the value of the goods, documents, or security when so delivered or transferred in exchange. 6. For the purposes of this Act an agreement made with a mercantile agent through a clerk or other person in the ordinary course of business to make contracts of sale or pledge on his behalf shall be deemed to be an agreement with the agent. 7. (1 ) Wliere the owner of goods has given possession of the goods to another per- son for the purpose of consignment or sale, or has shipped the goods in the name of another person, and the consignee of the goods has not had notice that such person is not the owner of the goods, the consignee shall, in respect of advances made to or for the use of such person, have the same lieu on the goods as if such person were the owner of the goods, and may transfer any such lien to another person. (2) Nothing in this section shall limit or affect the validity of any sale, pledge, or disposition, by a mercantile agent. 8. Where a person, having sold goods, continues, or is, in possession of the goods or of the documents of title to the goods, the delivery or transfer by that person, or by a mercantile agent acting for him, of the goods or documents of title under any sale, pledge, or other disposition thereof, or under any agreement for sale, pledge, or other disposition thereof, to any person receiving the same in good faith, and without notice of tlie previous sale, siiall have the same effect as if the person making the de- livery or transfer were expressly authorized by the owner of the goods to make the same. 9. Where a person, having ijought or agreed to buy goods, obtains with the con- sent of the seller possession of the goods or the documents of title to tlie goods, the delivery or transfer, by that person or by a mercantile agent acting for him, of the' goods or documents of title, under any sale, pledge, or other disposition thereof, or under any agreement for sale, pledge, or other disposition thereof, to any person receiv- ing the same in good faith, aud without notice of any lien or other riglit of the origi- nal seller in respect of the goods, shall have the same effect as if the person making the delivery or transfer were a mercantile agent in pos.session of the goods or docu- ments of title with the consent of the owner. 10. Where a document of title to goods has been lawfully transferred to a person as a buyer or owner of the goods, and that person transfers the document to a person who takes the document in good faith and for valuable consideration, the last mentioned transfer shall have the same effect for defeating any vendor's lien or riglit of stoppage in transitu as the transfer of a bill of lading has for defeating tlie right of stoppage in transitu. 11. For the purposes of this Act, the transfer of a document may be by indorse- ment, or, where the document is by cu.stom or by its express terms transferable by uelivery, or makes the goods deliverable to the bearer, then by delivery. 12. (1) Nothing in this Act shall authorize an agent to exceed or depart from hi.s 470 LEE V. BUTLER. [CHAP. IIL autliority as between himself and his principal, or exempt him from any liability, civil or criminal, for so doiiig. (2) Nothing in this Act sliall prevent the owner of goods from recovering the goods from an agent or his trustee in bankruptcy at any time before the sale or pledge thereof, or shall prevent the owner of goods j)ledged by an agent from having the right to redeem the goods at any time before tlie sale thereof, on satisfying the claim for which the goods were pledged, and paying to the agent, if by him required, any money in respect of which the agent would be by law en- titled to retain the goods or the documents of title tliereto, or any of them, by way of lien as against the owner, or from recovering from any person with whom the goods have been pledged any balance of money remaining in his hands as the produce of the sale of the goods after deducting the amount of his lien. (3) Nothing in this Act shall prevent the owner of goods sold by an agent from recovering from the buj-er the price agreed to be paid for the same, or any part of that price, subject to any right of .set-off on the part of the buyer against the agent. 13. The provisions of this Act shall be construed in amplification and not in deroga- tion of the powers exercisable by an agent independently of this Act. 14. The enactments mentioned in the schedule to this Act are hereby repealed as from the commencement of this Act, but this repeal shall net affect any right acquired or liability incurred before the commencement of this Act. 15. This Act shall commence and come into operation on the first day of January cue thousand eight hundred and ninety. 16. This Act shall not extend to Scotland. 17. This Act may be cited as the Factors Act, 1889. LEE V. BUTLER. In the Queen's Bench Division, Court of Appeal, August 2, 1893. [Reported in [1893] 2 Queen's Bench, 318.] Appeal from the judgmeut of Wright, J., at the trial, without a a jur}', ill Middlesex. The plaintiff's claim in the action was for the return of certain goods alleged to be detained by the defendant, or the value of such goods, and damages for their detention. The following facts were proved in evidence or admitted at the trial: On May 5, 1892, a hire and purchase agreement in writing was entered into between W. E. Hardy, furniture dealer, and Helen Caro- line Lloyd, of Thistle Grove Lane, South Kensington, the terms of which (so far as is material) were as follows : — " First: The said W. E. Hardy agrees to let on hire unto the said H. C. Lloyd, hereinafter called the hirer, who agrees to take on hire upon the terms hereinafter expressed, the furniture, goods, and chat- tels mentioned and specified in the schedule hereunder written. " Second: The said hirer for herself agrees, subject as hereinafter provided, to pay to the said AV. E. Hardy, as and by way of rent for the hire and use of the said furniture, goods, and chattels, the respective sums and at the periods following : that is to say, the sum of £1 on May 6, and the further sum of £96 4s. on August 1, 1892. "Third: The said hirer further agrees that she will not, during SECT. lY.] LEE V. BUTLER. 471 the continuance of this agreement, remove the said farni<^ure, goods, and chattels from 5 Thistle Grove Lane aforesaid to any other prem- ises -without the consent in writing of the said AY. E. Hardy . . ." The fifth clause provided that if at any time thereafter during the continuance of the agreement any paj^ment of rent thereby reserved should be in arrear and unpaid for the space of one week after the specified days or times whereon the same should become due, or if the hirer should remove the said furniture, goods, and chattels from 5 Thistle Grove Lane, or from any place to which the}^ should have been removed with the consent of W. E. Hardy, then it should be law- ful for W. E. Hardy or his agent forthwith to take possession of and recover the said furniture, goods, and chattels without notice to the hirer of his intention so to do, and for that purpose if necessary to enter by force into any premises where the said furniture, goods, and chattels might then be, and search for and remove the same. And in such case the hirer agreed that all moneys paid by her before such de- fault sliould be applied by W. E. Hardy as payment on account of hire and not as part payment of the said furniture, goods, and chattels. The fifth clause concluded : — "The said W. E. Hardy for himself hereby agi'ees that when and as soon as the said hirer shall have well and truly made all payments of rents hereinbefore reserved and performed all the stipulations and agreements hereinbefore on her part contained, the rent or payments hereinbefore mentioned and reserved for the said furniture, goods, and chattels, shall thereupon cease, and the aforesaid furniture, goods, and chattels shall thenceforth be and become the sole and absolute property of the said hirer. But it is expressly declared and agreed that no property or interest in the said furniture, goods, and chattels other than as tenant as aforesaid shall vest in the said hirer until the whole of the said payments of rent hereby reserved, amounting together to the sum of £97 4s., shall have been actually made by her as hereinbefore provided." A schedule of the articles of furniture followed. W. E. Hardy duly assigned the agreement and all his interest thereuniler to the plaintiff, and subsequently Mrs. Lloyd, before all the instalments were paid under the agreement, sold and delivered the goods to the defendant, in whose possession they were when the action was brought. Wright, J., gave judgment for the defendant, holding that the case came within s. 9 of the Factors Act, 1889 (52 & 53 Vict. c. 45), which section afforded a good defence to the action. The plaintiff appealed. Lynch, for the appellant. C. L. Attenborowjli, for the respondent, was not heard. Lord Esher, M. R. This is a very plain case, and the construction of the statute is very clear. It deals with " Dispositions by meixan- 472 MASS. PUBLIC STATUTES. [CHAP. III. tile agents *' in one set of sections, and with " Dispositions by sellers and buyers of goods " in another set of sections, in which s. 9 is in- cluded. The case is clearly within that section. [His J^ordship read s. 9.] Mrs. Lloyd had agreed by this hire and purchase agreement to buy the goods, and they were put into her possession with the consent of the owner. Mrs. Lloyd sold the goods to the defendant without notice that they were not hers, and he, acting in good faith and with no notice of the plaintiff's right, received them. Sect. 9 was passed to meet this very kind of case. I am of opinion that the judgment of AVright, J., was right, and this appeal should be dismissed. Appeal dismissed.^ MASSACHUSETTS REVISED LAWS, Chapter 68. Section 1. Every factor or other agent who is intrusted with the possession of merchan- dise or of a bill of lading consigning merchandise to him with authority to sell the same shall be deemed the true owner of such merchandise, so far as to give validity to any bona fide contract of sale made by him. Sect. 2. A shipper who is in lawful possession of merchandise at the time of shipment and in whose name it is shipped for sale shall be deemed the true owner thereof so far as to entitle the consignee to a lien thereon for monej' advanced or for securities given to the shipper for or on account of such consignment, unless the consignee, at or before the time when he made the advances or gave the securities, had notice by the bill of lading or other- wise that the shipper was not the actual and bonajide owner. Sect. .3. If a person who is intrusted with merchandise has authority to sell or consign the same, a consignee to whom he consigns it shall have a lien thereon for any money or merchandise adv^anced or for any negotiable security given by him on the faith of such consignment, to or for the use of the person in whose name the consignment or delivery was made, and for any money, negotiable security or merchandise received for the use of such consignee bvthe person in whose name the consignment or deliver^' was made, if such consignee had, at the time of such advance or receipt, probable cause to believe that the person in whose name the merchandise was shipped, transmitted or delivered was the actual owner thereof or had a legal interest therein to the amount of said lien. Sect. 4. If a consignee or factor, having possession of merchandise with authority to sell the same or having with such authority possession of a bill of lading, permit, certificate, or order for the delivery of merchandise, dei)Osits or pledges such merchandise or a part thereof or such document with any other person as a security for money or merchandise advanced or for a negotiable instrument given by him upon the credit thereof, juch other person, if he makes such loan, advance or exchange in good faith and with probable cause to believe that the agent making the deposit or pledge had authority so to do and was not acting fraudulently against the owner of such merchandise, shall, notwithstanding he has notice of such agency, acquire the same interest in and authority over such mer- chandise and documents as he would have acquired if the agent had been the actual owner thereof. Sect. 5. If such merchandise or document is accepted in deposit or pledge for an ante- cedent debt due from such consignee or factor, the person receiving the same shall thereby acquire no other or further right or interest in or authority over or lien upon the same than the consignee or factor might have enforced against the actual owner. Sect. 6. The provisions of the three preceding sections shall not affect the lien of a flon- 1 BowEN and Kay, L. JJ., concurred. Conf. Helby v. Matthews, [1895] A. C. 471. SECT. IV.] THACHER V. MOORS. 473 signee or factor for the expenses and charges attending the shipment, transportation and care of merchandise intrusted to him ; nor prevent the actual owner of merchandise from recovering it, previous to anj^ pledge thereof, from the consignee or factor or from his assignee in case of his insolvency; nor prevent such owner from recovering any merchan- dise or document so deposited or pledged, upon tender of the money and restoration of the negotiable security or property so advanced to such consignee or factor, and upon tender of such further amount of money and restoration of such negotiable instrument or property as may have been advanced or given by the consignee or factor to the owner, or upon tender of a sum of money equal to the amount or value of such merchandise; nor prevent him from recovering from a person with whom such merchandise has been so deposited or pledged any balance of monej' remaining in his hands as the proceeds of the sales thereof, after deducting the amount or value of the money or negotiable security so advanced thereon. 1 THACHER V. MOORS. Supreme Judicial Court of Massachusetts, March 19, 1880 — January 20, 1883. [Reported m 134 Massachusetts, 156.] Tort for the convei'sion of 184 bags of wool. Writ dated January 12, 1878. Trial in this court, without a jury, at September term 1879, before Ames, J., who reported the case for the consideration of the full court, in substance as follows : — At the time of the transactions hereinafter stated, the plaintiff was a merchant, doing business in Boston under the name of H. C. Thacher and Company, and was engaged in buying, selling, and receiv- ing consignments of wool for sale on commission, and making advances upon said consignments ; and the defendant was a banker, doing busi- ness in Boston under the name of J. B. Moors and Company. One Isaac II. Jones, Jr., up to about Nov. 15, 1877, when he absconded, carried on business in Boston, having his office in Federal Street. Upon the sign on his office door were the words " Wool Broker ; " at tlie entrance of the building in which he had his office was painted the word "Wool;" upon some of his business cards he was styled " Wool Broker," upon others, " Wool Broker and Com- mission Merchant," and ui)on his Ijill-hcads, "Wool Commission' Mer- chant." It appeared that he did business in wool, partly as a broker, to a considerable extent on his own account, and sometimes as a com- mission merchant. He had two large lofts suitable for the storage and exhibition of wool, in wliich, in addition to his other business, he was accustomed to store wool as a warehouseman for other persons, and also wool belonging or consigned to himself. Jones had a pi'ice on, and offered for sale as a broker, all wools in his stores, but there was 1 Sections 1 and 2 are made up from c. 193 of the Acts of 1845; Sections 4, 5, and G from c. 216 of the Acts of 184!). The wording of the statute has been somewhat simplified in the Revised Laws, as compared with previous revisions in General Statutes, c. 54 and Public Statutes, c. 71. 474 THACIIER V. MOORS. [CHAP. III. no evidence that the plaintiff knew this. Jones had had large transac tions with the plaintitl, both as a broker and on his own account. The defendant had known Jones for about four years and a half ; had visited his office in Federal Street ; had on one occasion stored wool with him as a warehouseman, and upon all the evidence must be assumed to have known hie general course of busmess, and that he acted in the different capacities of broker and merchant and ware- houseman. Before July, 1877, Jones applied to the plaintifE to take consignments of wool to be made to him by George B. Fessenden, of Wells River, Vermont. The plaintiff agreed to accept such consignments, and to advance about three-fourths of their value. No agreement was made by the plaintiff with Jones at the time as to warehousing or selling said wool, or as to Jones's acting as a broker in the sale of the same. On July 9, 1877, the first consignment was made. A railroad re- ceipt and an invoice were enclosed in a letter to Jones, and were brought and delivered by him to the plaintiff, in whose possession they have since remained. The receipt was signed by the agent of a rail- road companj' in New Hampshire, and stated that a certain number of sacks of wool were "received of G. B. Fessenden," and were "con- signed to H. C. Thacher & Co., Boston." The invoice was headed, " Invoice of fort3'-five bags wool consigned to H. C. Thacher & Co. for sale for my account," and was signed " Geo. B. Fessenden." Upon the arrival of the wool in Boston, the plaintiff gave orders to the carrier to deliver it to a truckman who acted frequently for Jones, to be stored in Jones's lofts, and received from Jones the following receipt: "Boston, Jul}- 12, 1877. Received in store 102 Federal Street, for ac. H. C. Thacher & Co. 45 bags fleece wool, Fessenden consgt. ac. I. H. Jones, Jr." All the subsequent consignments were made in the same wa}-, and similar receipts for all the consignments were given b}' Jones to the plaintiff. The plaintiff paid drafts upon him for three-fourths of the value of the parcels of wool as consigned, and also paid freight to tiie carrier. The wool in controvers}' is part of said consignments. Some of the drafts on the plaintiff were pa}'- able to the order of Jones. The wool was bought by Fessenden upon joint account with Jones, under an arrangement between them, b}- which Fessenden was to buj' the wool of the farmers in Vermont, and Jones was to find the money (eitlier furnishing it himself or procuring some one else to advance upon the wool) and have control of the sale of it in Boston, and the profits were to be divided between them. The plaintiff had no knowl- edge of this arrangement until after Jones absconded ; and had no reason to suppose or suspect that Jones had an}' interest in the wool, or was a partner with Fessenden in the transaction. The plaintiff did not intentionally give up the control of the wool, or intend to part with his rights in delivering the same to Jones, as before stated. Jones advanced money in excess of that advanced by the plaintiff. SECT. IV.] TEACHER V. MOOES. 475 The wool after being received in Jones's lofts was sorted, b}' an order of the plaintiff given to Jones, by cutting open each bag and separating the different kinds of fleeces, one from the others. The different kinds were then put into new and separate bags. This sort- ing is customary, and is necessary to put the wool into a condition to be exhibited to buyers. While the wool was lying open, it was seen by the plaintiff in Jones's lofts. Jones had no authority from the plaintiff to sell said wool as a factor or consignee, but said wool was intrusted b}' the plaintiff to Jones as a warehouseman, for the purposes of sale, and with authority as broker to receive offers for and to negotiate sales of the same, to be reported to and settled b\' the plaintiff, in whose name the bills of sale were made, and who collected the price. Jones, as such broker, showed the wool to his customers, for the purpose of getting offers to purchase it ; and, in two cases, reported to the plaintiff offers for two several lots, which were accepted by the plaintiff. Jones then made a broker's memorandum or bought-and-sold note, which he rendered to the plain- tiff. The plaintiff then ordered the wool weighed, and sent a bill of parcels, with a certificate of weights, to the buyer, from whom he re- ceived the price, or a negotiable security in payment thereof, without previous direct communication between himself and the buyer. Jones received a broker's commission on the sales, and also warehouse charges. Jones, did not (before the transactions with the defendant) sell any of the wool in his own name, or receive the proceeds himself, as a consignee or factor usually does, and had no authority from the plaintiff to dispose of the wool as if he were a consignee or factor. Jones entered this wool in the books in wliicli he kept account of wool stored by him as a warehouseman, including all wools consigned to him ; and also entered it in a separate book under head of " Fessenden Joint Account." These were the onl}- sales of this wool in which Jones took any part, and in both of these cases Jones consulted the plaintiff as to the price. Jones, while said wool, with other wool belonging to the plaintiff and for which the plaintiff held his receipts, was in his lofts, applied to the defendant at various times for loans of money upon pledges of different parcels of wool, of which he produced a memorandum and of wliich he said he was the owner, which statements were afterwards incorporated into contracts of pledge made with the defendant. The defendant examined samples of the wool, and agreed to make Jones loans on it, upon his having the wool put in store in the lofts of George B. Drake & Co., wool commission merchants, whose store was next to that of Jones, and bringing him a warehouse receipt therefor in each instance. The warehouse receipts were signed by George B. Drake & Co. upon printed blanks furnished by the defendant. At different times, from July 27 to Nov. 10, 1877, Jones pledged to the defendant the different parcels making up the wool in controversy. The defendant acted in good faith, but did not ask Jones to exhibit 476 TIIACIIER V. MOORS. [CHAP. III. any bill of sale, or bill of lading, or invoice, or other doci'ment of title ; nor did he examine Jones's books, or see any document of title, except the warehouse receipts of George B. Drake & Co. The defendant simply asked Jones if he owned the wool, and Jones replied that he did ; and the defendant relied upon this assurance and upon Jones's possession. Neither the plaintiff nor the defendant had seen or asked to see any of Jones's books until after he absconded. As soon as the defendant learned that Jones had absconded, he made demand under his con- tracts of pledge, sought a purchaser, negotiated a sale of all the wool held by him in pledge from Jones, including the wool in controversy, and on Nov. 22, 1877, sold tlie same. Before suit, and upon the day of the date of the writ, the plaintiff demanded of the defendant the wool in controversy, and the defendant refused to deliver the same. Upon the foregoing factS; the judge ruled, as matter of law, as fol- lows : 1. The plaintift' had a right to consider Fessenden the owner of the wool, and had, under the Gen. Sts. c. 54, § 1, a lien upon it for his advances. 2. The receipts which the plaintiff took from Jones, whether they are in the usual form of warehouse receipts or not, im- plied that Jones held the wool for the plaintiff, and that the latter had not lost his lien by delivering the wool to Jones, under the circum- stances stated. 3. Under the Gen. Sts. c. 54, §§3, 4, Jones was neither a '•'person intrusted with" the disposal of the wool, "and having authority to sell or consign the same," nor " a consignee or factor having possession of'' the wool "with authority to sell the same," " or having possession of a bill of lading, permit, certificate, or order for the delivery of" the wool " with like authority." 4. Under the Gen. Sts. c. 54, §§ 3, 5, Jones was not in fact invested by the plaintiff with the jus disponendi of the wool. He had no authority from the plaintiff to sell or consign the same ; it was not in his pos- session as consignee or factor having authority to sell ; and he had possession of no bill of lading, permit, certificate, or order for the de- livery of the wool with like authority. 5. As the defendant knew that Jones was a wool-broker and warehouseman, as well as a dealer iu wool on his own account and as a commission merchant, and as no bill of lading, document, or writing of any kind in relation to Jones's title in the wool had been called for or exhibited, the mere possession of the propert}-, and the oral assertion of Jones that it was his, would not, as matter of law, furnish or amount to " probable cause," within the meaning of the statute ; and it was the defendant's duty, in such a state of facts, to have made further inquiry, and to have required furtlier evidence of Jones's right to dispose of the property. 6. The defendant was guilty of a conversion of the wool in controversy when the different parcels thereof were received by him in pledge from Jones; or, if not then, upon Nov. 22, 1877, when he sold the wool; or, if not then, upon Jan. 12, 1878, the date of the plaintiff's demand. SECT. IV.] THACHER V. MOORS. 477 The judge thereupon found for the plaintiff If, upon the facts fotice of his fidu- ciary character ; but the pledgee was only to obtain such right or inter- est therein as the pledgor himself possessed. Our Act relative to principals and factors or agents, in the first and second sections, protects consignees of merchandise shipped in the name of a person who is not the real owner, where they are ignorant of the fact that such consignor is not the owner. The third section then pro- vides that " Ever}' factor or other agent intrusted with the possession of any bill of lading, custom-house permit, or warehouse-keeper's receipt for the delivery of any such merchandise, and every such factor or agent, not having the documentary evidence of title, who shall be intrusted with the possession of any merchandise for the purposes of sale, or as a security for any advances to be made or obtained thereon, shall be deemed to be the true owner thereof, so far as to give validity to any contract made by such agent with any other person for the sale or disposition of the whole or any part of such merchandise, for any money advanced, or negotiable instrument or other obligation in writing given by such other person upon the faith thereof" 1 R. S. 7G2, tit. 5, § 3, of 2d ed. It is perfectly evident from the whole of this section, taken in connection with the second section and the previous law upon the subject, that the words "on the faitli thereof" refer to the ownership of the goods ; so as to protect tlie purchaser, or pledgee, who has advanced his money or given his negotiable note or acceptance or other written obligation, upon the faith or belief of the fact that the person with whom he dealt was the real owner of the property. Any other construction of the statute would do great injustice to the legislature who passed the Act of 1830. For it would authorize tlie agent or factor to commit a fraud upon his principal, with the connivance of the purchaser or pledgee who had no- tice of the fiduciary character of the vendor or pledgor. It would also be in direct conflict with the seventh section of the same statute, which makes such a fraud an indictable offence, not only against the agent or SECT. IV.] COLLINS V. KALLI. 485 factor, but also against every person who shall knowingly connive with or aid him in the commission of the fraud. Our statute does not, as in the fifth section of the 6 Geo. 4, ch. 94, authorize the agent or factor to pledge the goods of his principal to the cxte4it of his lien, to persons who are aware of his fiduciary character and without any authority for that purpose from his principal. But even under the British statute it has been held that a mere liability of the agent or factor, upon acceptances for his principal, is not sufficient to give such agent or factor a lien which will authorize him to pledge the goods to a third person without the consent of his principal. In Fletcher V. Heath, 7 Barn. & Cress. 517, and Blandy v. Allan, Danson & Lloyd's Merc. Cas. 22, the factor was under acceptances for his principal at the time he pledged the goods for advances thereon, but which acceptances the principal afterwards duly paid or provided for. And it was held that the pledgee could not hold the goods to the amount of the accept- ances for which the factor was liable at the time the goods were pledged, but which he was not afterwards compelled to pa}'. Here the judge who tried the cause not only gave to the defendant in the court below all his legal rights, but protected him so far as an}' equity existed as between the factor and his principals, if not much further. I therefore think the judgment of the Supreme Court should be affirmed. Judgment affirmed} JOHN COLLINS, Respondent v. STEPHEN RALLI and Others, Appellants. New York Supreme Court, February Term, 1880. [Reported in 20 Hun, 246.] Appeal from a judgment for the plaintiff, entered upon a referee's report. The referee found that on Dec. 28, 1877, Henry M. Cutter, a mem- ber of the firm of H. M. Cutter & Co., cotton-brokers, called upon the jjlaintiffandb}' falsely and fraudulently representing that he was author- ized to buy cotton for the Freeman Manufacturing Company of North Adams, Massachusetts, induced the plaintiff to sell 100 bales of cotton to that company. Bv representing that he desired to ship the cotton immediately, Cutter procured from tlie plaintiff a delivery order upon the warehousemen who were storing tlie cotton. At their warehouse Cutter had the cotton weighed and marked and loaded upon a truck ; tags, with the name and address of the mills, being fastened to each bale. Cutter stored the cotton in another warehouse, some of the bales at that time still having the tags upon them, and took out receipts 1 The concurring opinion of Senator Lott and the dissenting opinion of Senator Johnson are omitted. ) 486 COLLINS V. KALLI. [CHAP. IIL therefor from the keeper of such wareliouse in his own name first, and afterwards in tlie name of his brokers. All the tags were removed from the bales while in this latter warehouse. Thereafter the defendants purchased the cotton in good faith and for value through their brokers, receiving the warehouseman's receipts therefor, and subsequently shipped it to Liverpool. That plaintiff was guilty of no negligence, in anj* of the transac- tions above stated, but in all respects exercised due care and caution therein, and all his acts in respect thereto were in the nsual and ordi- nary' course of business of selling cotton to spinners through the medium of a broker. That plaintiff parted with the custod}' of said cotton to said H. M. Cutter & Co. for the sole purpose c^ having the same shipped and de- livered to the pretended purchasers.^ Coudert Brothers^ for the appellants. Freling II. Smithy for the respondent. Pratt, J. The facts in this case clearly show that Cutter & Co. were guilt}- of larceny in obtaining the temporary custod}' of, and appropri- ating to their own use the cotton in question in this action. The}' had, by false and fraudulent statements, induced the plaintiffs to believe that they represented and were authorized to purchase this cotton for certain manufacturing companies, and relying upon their representation, the plaintiff sold the same to these manufacturing companies as he sup- posed through Cutter & Co., as brokers, and so they were allowed to put the cotton aboard their trucks after it had been tagged and ad- dressed to the supposed purchasers for conveyance to the depot for shipment. This was done in pursuance of the usual custom obtaining in re- spect to shipment of goods purchased by manufacturing companies through brokers. In such cases it appears the dealer allows the broker to cart the goods for shipment. The possession of Cutter & Co. was therefore temporary, and given to them for a specific purpose, and they procured such pos- session fraudulently and with the purpose and design of converting tiie goods to their own use. The evidence, which is undisputed, shows this conclusively. The case is therefore brought directly within the definition of larceny given in Loomis v. The People, 67 N. Y. 322 ; and also 2 R. S., p. 679, § 63 ; Smith v. The People, 53 N. Y. 113 ; Bassett v. Spofford, 45 id. 391 ; Zink v. The People, 6 Abb. N. C. 413 ; 2 East's P. C. 681, 698. The defendants rely upon Rex v. Atkinson, 2 East's P. C. 673, as an authority in opposition to these views ; but in that case the offence charged was held not to be a felony simply, as it came within the stat- ute of 33 H. 8th Ch. 1, against obtaining goods by false tokens or counterfeit letters, and was therefore punishable as a misdemeanor only (East P. C. 687). Whether or not Cutter & Co. were guilty of larceny, 1 The statement of facts has been abbreviated. SECT. IV.] COLLINS V. EALLI. 487 however, is important in the determination of the ease only upon the question of estoppel, for it cannot well be claimed that an owner has confei'red upon the thief indicia of title to his stolen goods, or that he cannot reclaim them because of any negligence charged. Bassett V. Spofford, supra. Whatever may be the grade of the offence of Cutter & Co. in de- frauding plaintiff of his goods, the}- could convey no title to them even to an innocent purchaser for value unless plaintiff committed, or omitted some act in respect to them whereb}' such purchaser was, and a prudent person would naturally be, misled by some apparent owner- ship or power of Cutter & Co., or their representatives in or over the same, created by such act or omission. If plaintiff clothed Cutter & Co. with apparent title, or power to sell, or did anything out of the usual course of business calculated to and which did actually mislead the defendants in respect to the ownership or right of sale of the cotton, it would clearl}- be inequitable to permit the plaintiff to recover therefor from the defendants, who had parted with their money on the faith and credit of the appearances so created by him.* The principle of estoppel would doubtless apply. McNeil v. Tenth National Bank, 46 N. Y. 329. The question therefore arises, did plaintiff so clothe Cutter & Co. with apparent title to or authority to dispose of the cotton in question. De- fendants claim that by giving to them the delivery orders he conferred upon them indicia of title. It seems scarcely necessary to discuss this proposition. The deliv- ery orders were but the usual means adopted to put Cutter & Co. into temporar}' possession of the cotton to enable them to weigh, tag, and cart it for shipment to the manufacturing companies the}' had falsely and fraudulently represented as purchasers. These orders worked no harm to an}' one. They were not seen by defendants or any per- son representing them, and their existence even was unknown to them. If the delivery orders were of such character as to indicate title in Cut- ter & Co., yet, as defendants were not misled by them, they furnish no support to their claim of estoppel. This is a familiar rule of law, and was so lield in Boyson v. Coles, G M. & S. 14, which is a case similar in principle to the one at bar. It was also held in that case that a de- livery order is evidence of right of possession, and not of ownership. Says Abbott, J. : "Upon this point, all tliat appears to have been im- parted to the defendant, as the act of tlie plaintiffs, was the transfer order to the dock company, upon wliich the transfer was made to him by Coles Brothers ; but I consider the transfer order merely as affect- ing the possession; farther than that 1 cannot carry it; and posses- sion alone is not a sufficient emblem of authority to entitle a factor to pledge so as to enable the pawnee to hold the goods against the real owner. In the present case, it does not a[)pcar that the defendant was misled by any act or document with wliieii the plaintiffs were con- cerned, other than such as regarded possession, and therefore the jury 488 COLLINS V. RALLL [CIIAP. IIL were warranted in the conclusion which they came to on the second question." People v. Bank of North America, 75 N. Y. 547. The purpose of these orders was served when they were delivered to the wareliousemen who had tlie cotton in store, and they obeyed them. Tliej- no more indicate title than a written direction to one's cobbler to deliver to his servant a pair of shoes, clotlies the latter with apparent ownership and right of sale of them. McEwan v. Judd, 2 H. of L. Cas. 30y. Defendants also insist that plaintiff, b^' intrusting Cutter & Co. with the temporar}' possession of the cotton for shipment, vested them with indicia of title. It is true that possession is some evidence of owner- ship, but the rule is elementary that bare possession is not sufficient to enable one to convey title to chattels. Ballard i\ Burgett, 40 N. Y. 314; McNeil v. Tenth Nat. Bank, siqxra ; F. and M. Bk. v. Atkinson, 74 N. Y. 587 ; F. and M. Bk. v. Logan, id. 568 ; Loomis v. People, supra ; McGoldrick v. Willits, 52 N. Y. 612 ; Saltus v. Everett, 20 Wend. 267 ; Lickbarrow v. Mason, 2 T. R. 62 ; Boyson v. Coles, supra. If it were otherwise, ordinary business affairs could not be conducted with safely. The demands of trade require almost innumerable agencies in the trans- portation of merchandise, and necessitate their delivery to employes, agents, and even strangers, for that purpose. The case of Higgins v. Burton, 26 L. J. n. s. 342, Ex., is identical in principle with the one at bar. Plaintiff there had dealings with one Fitzgibbon, a merchant at Cork, in whose emplo}- one Dix had been, who was known to plaintiff as agent for Fitzgibbon. Dix Avas dis- charged b}' Fitzgibbon, and afterwards and before plaintiffs were in- formed of it proposed to purchase from them, in Fitzgibbon's name, some silks, which were delivered to him and by him sent to defendant, who was an auctioneer, by whom they were sold and tlie proceeds paid over to Dix. Afterwards Dix obtained other goods from plaintiff in a similar wa}-, upon which defendants made advances in ignorance of the fraud. The plaintiff brought trover and recovered. Watson, B., says : " Dix only affected to have the authority of Fitzgibbon to purchase the goods ; he had in fact no such autliority and no property passed to him. There was no real contract and he could give no better title than he had ; and the pledge to the defendant passed no property. The case of Hardman v. Booth, 1 H. & C. 803 ; 7 L. T. Rep. n. s. 638 ; Cundy V. Lindsay, 38 id. 573 ; and Barker et al. v. Dinsmore, 72 Penn. 427, are similar in their facts and to the same effect. Babcock v. Lawson, 20 Alb. L. J. 407, cited and relied upon by defendant's counsel, does not conflict with these authorities or the views here stated. That case lias no similarity to this. The language of Chief Justice Cockburn, in relation to possession as evidence of title, relates only to tlie possession of a factor or one otherwise held out as having power to sell. The distinction must be borne in mind between the case in hand and that of a person procuring the sale of goods by means of false pretences. Here there was no sale ; there was no purchaser, and so the title re- SECT. IV.] COLLINS V. KALLI. 489 mainecl in plaintiff. If one b}- fraudulent contrivances induce the sale and delivery of goods to himself, he could doubtless conve}- a good title to a bona fide purchaser of them for value so long as the original owner has not exercised his right to revoke the sale and reclaim his goods. The reason of this rule is obvious. The owner in the case supposed has clothed the fraudulent purchaser with a qualified title, as well as given him possession, and therefore it would be a rank injustice to permit him to take them from an innocent person who had in his purchase relied upon the evidences of title so created. The principle of estoppel in such cases would prevail. This distinction is pointed out in Cundy v. Lindsa}', supra, in which Lord Chancellor Cairns in his opinion says : '•The result, therefore, is this, that your lordships have not here to deal with one of those cases in which tliere is de facto a contract made, which may afterwards be impeached and set aside on the ground of fraud, but you have to deal with a case which ranges itself under a completely different chapter of law : the case namely in which the con- tract never comes into existence That being so, it is idle to talk of propert}- passing." Zink v. The People, stcpra; McGoldrick t-. Willits 52 N. Y. 612; Smith v. The People, o3 id. 111. The rule of law applicable to the two classes of cases, and the dis- tinction above referred to, are accuratelj- and tersely stated in the head-note to the case of Higgins v. Burton, supra., as follows : " When the owner of goods suffers another to have possession of them, or of the documents which are the evidence of property therein, on a sale to him obtained by means of fraudulent representations, and avoidable at the option of the owner, a sale or pledge by such party before the owner has exercised his option and without notice to the subsequent purchaser is binding ; but this is not so when the party has merely' obtained the goods by means of false pretences, without any contract of sale to him- self, as when he falsely and fraudulently represents that another person has authorized him to purchase the goods ; and in such case the orig- inal owner can recover tlie goods from a party to whom they have been sold or pledged by the person who fraudulently obtained them before an}- notice of the fraud or any disaffirmance of the transaction b}' the real owner." The only case that has been cited or which we have been able to find in conflict with these views is Craig v. Marsh, 2 Dalv, 61. The learned judge who wrote the opinion seems to have been misled b}' the general language of the opinion of some of the cases of sales of goods by false pretences, and not to have kept in mind the distinction between this line of authorities and those in which there is de facto no contract of sale made, as stated by Lord Chancellor Cairns in Cund}' v. Lindsa}-, supra, in commenting on this distinction. The opinion itself, and the cases cited and relied u[)on by the learned judge, indicate this mistake. The counsel for the plaintilfs in that case also seems to have fallen into the error of conceding that the person fraudulently procuring the goods was not guilty of larcen}-, and the concession doubtless misled the 490 COLLINS V. EALLL [CHAP. IIL court. The case, so far as we are aware, has not been cited with ap- proval or followed, and is not supported by any of the authorities referi'cd to in the brief opinion of the court. This brings us to a consideration of the effect of section 6, chapter 326, of the Laws of 1858, upon tlie rights of the parties. This Act is entitled " An Act to prevent the issue of false receipts, and to punish fraudulent transfei's of property b}- warehousemen, wharfingers, and others (3d Edin. Stat. p. 667). The section in question read as follows : " Warehouse receipts given for any goods . . . stored or deposited with an}' warehouseman . . . ma}' be transferred by indorsement thereof, and any person to whom the same may be so transferred shall be deemed and taken to be the owner of the goods . . . therein specified, so far as to give validity to any pledge, lien, or transfer made or created b}- such person or persons." The learned counsel for the defendants insist, that the provisions of this section afford them a complete protection against a recovery in this action ; that, having purchased the cotton upon the faith of the nego- tiable warehouse receipts, and paid therefor full market value, this case falls both within the spirit and the letter of the section. All the other sections of this Act, except the last, which is unimportant, prohibit the issue of false receipts, etc., and prescribe the penalty for a violation of their provisions. The scope and object of the Act, therefore, seems to be to protect the mercantile community against fraudulent practices In' warehousemen, wharfingers, and others, in respect to these receipts for goods stored or represented to be stored with them. That this is the purpose is shown by tlie title of the Act. The sixth section is simpl}' an enunciation of common law principles. It estops the ware- houseman from disputing the title of the innocent holder of a negotiable receipt issued by him, and renders him liable to account to such holder for the goods therein represented, whether falsely issued or not. The clause, ''■ warehouse receipts given for any goods . . . stored or de- posited with any warehouseman," means receipts given for goods so stored or deposited b}' any person having the title thereto, real or ap- parent, or authorit}' from such person therefor. This section of the Act proceeds upon the assumption that the receipt is so issued. Any other construction would enable warehousemen to issue receipts for goods, known by them to be stolen, and so conve}^ title to them, or even them- selves to commit larceny, and by issuing receipts for the stolen property defraud the plundered owner of all title to and power of reclaiming it. Such a construction would work a change in the law hardly contem- plated by the legislature when the Act under consideration was passed, and yet the construction insisted upon by the defendants would accom- plish precisely this result. Courts often have to look be3'ond the mere words of a statute in determining its meaning, and give to it such an Interpretation as the mischief sought to be cured and the evident inten- tion of the legislature indicate. Chapter 179 of the Laws of 1830, commonl}' called the Factor Act, is entirely analogous, and has been SECT. IV.] COLLINS V. KALLL 491 construed bj' the Court of Appeals in conformity with the interpretation above given to the Warehouse Act, The Factor Act provides that ^ every person in whose name an}' merchandise shall be shipped shall be deemed the true owner thereof," etc. Now it is evident that a literal reading of this clause would give a tliief who shipped stolen goods in his own name the same power to convey a good title to them, as the same character of construction would the warehouseman under the sixth section of the Warehouse Act, as above shown ; but the Court of Appeals has held in Kinse}' v. Leggett, 71 N .Y. 387, and other cases, that the Act " onlj' applies when the shipment is made with the con- sent of the real owner in the name of another;" that "the Act was not intended to deprive actual owners (of their property) who had not parted with their title, or who, b}' fraud and without any fault on their part, had lost control over it." Merch. and Trad. Bk. v. F. and M. Bk., 60 N. Y. 40 ; Rowland v. Woodruff, id. 73 : First National Bank of Toledo V. Shaw, 61 id. 283; Covell v. Hill, 4 Denio, 323 ; s. c. 2 Seld. 374 ; F. and M. Bk. v. Logan, 74 N. Y. 568. The precise question here presented was decided by the Commission of Appeals in the First National Bank of Toledo v. Shaw, 61 N. Y. 283. The plaintiff had discounted drafts drawn upon T. W. Griffin & Co., of New York City, upon the securit}' of a bill of lading of a cargo of wheat, which stated that the wheat was shipped on account of plain- tiff to Kidd, Pierce, & Co., of New York, to be held b}' them until pay- ment of the drafts, and then to be delivered to T. W. Griffin & Co., the wheat at Buffalo to be received and forwarded b}' A. L. Griffin & Co. to Kidd, Pierce, & Co. A. L. Griffin & Co. transshipped b}- canal from Buffalo, and issued a canal bill of lading, in substance like the above, with the addition that the freight, etc., were to be paid to Young Bros., and sent this bill to T. W. Griffin & Co. or to Young Bros. On the arrival of the wheat at New York, it was unloaded by direction of T. W. Griffin & Co. at the warehouse of Shaw & Co., who issued to them a negotiable warehouse receipt therefor, according to their custom, which was to issue warehouse receipts to an}' one who sent boats to them without demanding to see the bill of lading. T. W. Griffin & Co. indorsed and delivered the warehouse receipt to the New York Guarant}' and Indemnlt}' Company, and that company, upon the faith of it, made a loan of S14,000 to Griffin & Co. One of the drafts held by the bank was afterwards protested for non-payment, and it then brought an action against Shaw & Co. and the Guarantv and Indemnity Compan}' to recover possession of the wheat ; and tlie Commission of Appeals held that it was the dut}' of tlie warehouse- men (Shaw & Co.) to have made inquiries as to the title of T. W. Griffin & Co., and inasmuch as the latter had no title or indicia of title save the bare manual possession of the wheat, that the warehouse re- ceipt afforded no protection to the Guaranty and Indemnit}' Company. Commissioner Dwight says, at page 297 of the reported case: "The warehousemen (Shaw & Co.) were bound to inquire whether a bill of 492 COLLINS V. RALLL [CHAP. III. lading accompanied the shipment. Their custom to make no inquiries, but to warehouse grain for any one who had the possession, coukl not in an\' respect prejudice the rights of the plaintitf. Having warehoused it, Ihey wore bound to hold the grain for the rightful owner. Their receipt given for the grain was no protection to the Guaranty and In- demnity Company. Shaw & Co. simpl}' trusted to a person having the naked possession, without any title or indicia of it. If on that bare possession they issued evidences of title, they were mere waste paper, under which the Guaranty Compau}' can make no claim. A mere pos- sessor cannot confer ownership b}' falsel}' asserting, through bills of lading or warehouse receipts, that he has a title." Again, at page 302, he says: "If the Guaranty Company saw fit to act on the so-called warehouse receipt, which itself had no solid foundation, it acted at its peril." And at page 303, etc., he says: "Shaw & Co. could not safely repose on the mere possession of Griffin & Co., but were bound to look into the shipping documents, and are accordingly chargeable with constructive notice of their contents. The Guaranty Company are in the same position with Shaw & Co. The warehouse receipt being mere waste paper, that company can claim no rights under it." It is indisputable that the precise point in controversj' in this action IS here determined, and that it was directly involved in that case. If, then, Shaw & Co. had no right to issue a warehouse receipt for goods to one having control of the boat by and in which they were shipped, and then contained, and if a receipt so issued is worthless, and no pro- tection to one acting and advancing on the faith of it, it is needless to argue that there is no justification for the warehouseman. Richards, in the case at bar, issuing receipts, as is shown by the testimony' of the witness Kane, contrary to the usual course of business, to one hav- ing merely the naked manual possession of the goods for a temporary- purpose, and where the shipping tags on the goods were in themselves sufficient evidence at least to put a prudent man on inquirj' as to the nature and purpose of such possession ; and if in the Toledo Bank Case the warehouse receipts furnished no ground for protection to the Guaranty Company, the receipts issued by Richards surel}- cannot avail the defendants in this action. In Geneva National Bank v. Reamer, 7 Weekly Digest, 462, the court, at Special Term, simply held that the question for whom the grain covered bj- the receipt was received or held b}' the warehouse- man was one of fact, and should have been submitted to the jury, and the learned justice in his opinion correctly remarks : " A receipt fraudu- lently issued to one who has no property held in store for him cannot bind or affect property held for another." In Yenni v. McNamee, 45 N. Y. 619, the receipt given was held not to be a warehouse receipt under the meaning of the statute. In McCombie v. Spader, 1 Hun, 193, the goods covered by the receipt were sold to the person putting them in store, although the sale was fraudulently procured; hence he was in position before the goods were reclaimed by the original owner SECT. IV.] N. Y. SECURITY AND TEUST CO. V. LIPMAN ET AL. 493 to convey- good title to them by sale directly to an innocent purchaser, or through the medium of a warehouse receipt. Plaintiff's demand of the defendants, before suit brought, was suffi- cient. It is evident from the testimony that they knew to what cotton he referred. The larceny and flight of Cutter & Co. had become a matter of public comment, and the cotton in question was called b}- them the Cutter cotton, and Icnown to them to have come through Cutter & Co., and the plaintiff, by his demand, made orally and in writing on the 2d of March, 1878, specified the exact number of bales required, and so designated them as connected with the fraud of Cut- ter & Co. as to have left no doubt in the mind of the plaintiff as to the cotton called for. The demand formerly made by plaintiff, Jan. 11, 1878, when he found a portion of the cotton in defendants' possession, was also suffi- cient. If they had any misgivings at the time of either demand as to the cotton referred to, it was their duty so to inform plaintiff, and thus procure a more definite description of it. Their failure so to do was a waiver of any defect tliere may be in the demands in this respect. Marine Bank of Buffalo v. Fiske, 71 N. Y. 355. The demand and refusal to deliver the cotton, however, was only evidence of conversion, and as it appeared upon the trial that the de- fendants had actually converted it by shipping it to Liverpool nearly two months before the commencement of the action, and there disposing of it, a demand was unnecessary. Marine Bank of Buffalo v. Fiske, supra ; Pease v. Smith, Gl N. Y. 477 ; Connah v. Hale, 23 Wend. 462. We have tluis gone over, at considerable length, the various ques- tions raised in this case and argued in the briefs of counsel with much force and skill, because of their great importance, and as to some of tliem, tbeir noveltj'. All the parties to this action are innocent of fault in respect to the matters in controvers}', and it is simply the duty of the court to see to it that the loss, which in any event must work a hardship, falls where the law casts it. The judgment appealed from must be affirmed, with costs. BxViiXARD, P. J., and Gilbert, J., concurred. Judgment affirmed, loith costs.^ NEW YORK SECUEITY AND TRUST COMPANY, Respondent, v. ERNST LIPMAN, et Al., Defendants, and HONG KONG AND SHANGHAI BANKING CORPORATION, et Al., Appellants. New York Court of Appeals, November 23, 1898-J anuary 10, 1899. [Reported in 157 New York, 551.] Vann, J. This action was brought to settle conflicting claims to the ])roceeds of a quantity of burlaps. All the claimants derived title 1 Tliis decision was affirmed by the Court of Appeals, 85 N. Y. 637, and was fol lowed in Soltau v. Gerdau, 119 N. Y. 380. 494 N. Y. SECURITY A^'D TRUST CO. V. LIPMAN ET AL. [CHAP. III. througli the firm of Lipman & Co., manufacturers and importers, of Dundee, Scotland, Avho were represented in this country by Ludwig Gutmann, as their general agent. When Lipman & Co. shipped the goods to this country they transmitted the bills of lading (which were generally made out to Lipman & Co. both as consignors and con- signees, but in one case to one of the appellants as consignee) together with consular invoices to one of the appellants who advanced money thereon. The appellants thereafter sent the bills of lading and in- voices together with a blank trust receipt to Gutmann. The bill of lading made out to one of the appellants as consignee was indorsed by him when so sent. Gutmann signed and returned the trust receipts, but retained the bills of lading and invoices. The trust receipts were to the effect that a bill of lading for a certain number of bales had been received from the appellants by Lipman & Co. which " we hereby agree to hold as their property . . . and on sale of said goods, or any portion thereof, we further bind ourselves to remit . . . the proceeds thereof as soon as received; the intention of the undersigned in giving this trust receipt being to protect and preserve unimpaired the title and interest of ' the appellants named ' in said goods, and to act in the premises entirely as their trustees." Thereafter, Gutmann by means of the bills of lading and invoices w^as enabled to enter the goods at the custom house and send the goods to a bonded warehouse. The Terminal Warehouse Company. The warehouse receipts were made out without other identification of the goods than a specified number of bales of burlaps. This was done at Gutmann's request so that he could substitute other bales equal in kind and quality for those in storage whenever he liked. The ware- house company allowed him to do this, and many substitutions were made. All the receipts covering the bales in dispute were negotiable in form, running to Lipman & Co. In order to secure a loan for his principals from the plaintiff, Gut- mann made a note in their name and indorsed warehouse receipts also in their name. The plaintiff never saw the bills of lading or invoices and knew nothing of the trust receipts. Lipman & Co. afterwards failed. None of the bales then in the warehouse and regarded as covered by the receipts held by the plaintiff were in the warehouse at the time the plaintiff made its loan, substitutions having been made. This is the history of the bales in question. The trust receipts were a secret arrangement between the appellants and Lipman & Company, known only to themselves, the effect of which, as between themselves, assuming that they truthfully express the ac- tual transaction, it is unnecessary to decide. There is some reason to believe that the appellants were simply pledgees out of possession, and hence with no title. As to third persons, the naked receipts, with- out other proof, such as the making of a loan or of advances, were slender evidence of title, and although the attention of the appellants was repeatedly called to this defect during the trial, no effort was SECT. IV.] N. Y. SECURITY AND TKUST CO. V. LIPMAN ET AL. 495 made to remedy it, except to some extent by Cotesworth & Powell, as already stated. Independent of the question of substitution, which will be consid- ered later, these facts bring the case directly within the provisions of the Factors' Act, which declares under what circumstances a factor or agent shall be deemed the true owner as to third persons acting in good faith. (L. 1830, ch. 179.) That act makes "every factor or other agent, intrusted with the possession of any bill of lading, custom house permit or warehouse keeper's receipt, for the delivery of any " merchandise, or if he has not the documentary evidence of title, if he is '• intrusted with the possession of any merchandise for the purpose of sale, or as a security for any advances to be made or obtained thereon . . . the true owner thereof, so far as to give validity to any contract made by such agent with any other person for the sale or disposition of the whole or any part of such merchandise, for any money advanced or negotiable instrument or other obligation in writing given by such other person upon the faith thereof." (Id. § 3.) By the next section it is declared that the holder of an antecedent debt who accepts or takes merchandise in deposit from any such agent as security there- for, shall not acquire thereby any right other than was possessed by the agent at the time of the deposit. Subsequent sections protect the true owner to a certain extent by enabling him to redeem the mer- chandise when pledged, and to recover any balance iTpon the sale there- of. They prohibit those to whom merchandise may be committed for transportation or storage only, from selling or hypothecating the same, and finally make it a misdemeanor for any factor or agent to sell, pledge or dispose of any merchandise or documentary evidence of title for his own benefit contrary to good faith and with intent to defraud the true owner. (Id. § 7.) While Lipnian & Company are called trustees in the receipts given by them to the appellants, we think they were agents within the mean- ing of the Factors' Act. Two of the receipts authorize a sale by Lip- man & Company, while the third fairty contemplates a sale by the use of the words " said merchandise or the proceeds thereof." This also appears from evidence outside of the receipts. Lipnian & Company were "intrusted with the possession of" the bills of lading and the consular invoices, to which formal declarations, duly acknowledged, were attached, stating that they were the owners of the goods. Having the lawful evidence of title, furnished by the appellants to enable them to sell the goods and remit the proceeds, they became agents for that purpose. Their authorized action was that of agents and was of the kind contemplated by the Factors' Act as ordinarily done by agents. Calling them trustees does not make them trustees as to third persons, with no notice of the secret agreement. The object of the statute was to protect innocent persons who deal in reliance upon apparent owner- ship, resting upon possession either of the merchandise itself or docu- mentary evidence of ownership. (Cartwright v. Wilmerding, 24 IST. Y •496 N. Y. SECURITY AND TRUST CO. V. LIPMAN ET AL. [cHAP. III. 521 ; Pegi-am v. Carson, 10 Bos. 505 ; Meacliam on Agency, § 995.) We have carefully examined the authorities relied upon by the appel- lants, but find nothing in conflict with these views. The remaining question relates to the substitution of bales. The appellants claim that the plaintiff never advanced any money on account of their bales, and that it never at the request of Lipman & Company surrendered any goods pledged to it in substitution for the bales be- longing to the appellants. This is true, but the Special Term is pre- sumed to have found, according to the evidence, that prior to the original loan Lipman & Company had established with the bonded warehouse a course of dealing, by which the warehouse company issued negotiable open receipts to them for certain specified quantities of burlaps without specifying any particular bales ; that the warehouse company held against such open receipts as many bales as they called for, always retaining a sufficient quantity to cover all open receipts outstanding, the holders of which could at any time call upon the ware- house for the quantities specified therein ; that at the date of the failure of Lipman & Company, by the process of transfer in the ware- house, the bales consigned by the appellants to Lipman & Company were held by the warehouse company to satisfy the open receipts that it had given to Lipman & Company, and which were then held by the plaintiff. The legal effect of the open warehouse receipt Avas an undertaking by the warehouse company to deliver the number of bales specified therein, stored with it by Lipman & Company, to that firm or their assigns upon the return of the receipt. It hence was under an obliga- tion to keep on hand the number of bales called for by such receipt as long as it was outstanding. It did not agree to deliver any particular bales, for the receipt was open and contained no identifying marks. If it delivered the number of bales stored with it by Lipman & Com- pany, called for by the receipt, upon the return thereof, it satisfied its engagement. According to the uncontradicted evidence all the bales were practically of the same value, and when the plaintiff demanded two hundred bales, under the open negotiable receipts, pledged to it by Lipman & Company, the warehouse company was under obligation, as bailee for the plaintiff, to deliver the number of bales called for, and if it did so its contract with the plaintiff as assignee of the open re- ceipt was fully performed. Hence, the warehouse company, being under this obligation, was in the position, when it surrendered the original two hundred bales to Lipman & Company, or upon their order, of parting with value under the agreement in force between them as to the substitution of new bales in the place of old ones withdrawn. Their liability to account to the plaintiff for two hundred bales was a good consideration for the substitution of two hundred other bales, of like constituent units, upon the surrender of the former. This is made very plain by the opinion of the Circuit Court of Appeals, written in a case brought by one Blydenstein against this plaintiff as defendant to SECT. IV.] N. Y. SECURITY AND TKUST CO. V. LIPMAN ET AL, 497 recover part of the proceeds of the two hundred bales in question upon a claim similar to those asserted by the appellants in this action. (Blydenstein v. N. Y. Security & Trust Co., 67 Fed. Eep. 469.) We close our review by quoting from that opinion as follows : " The trust company, therefore, on September 7, 1892, obtained a valid lien on 500 bales of Lipman & Co.'s burlaps then stored in the warehouse. There- upon the warehouse company became its bailee, and held the bales for it. (Gibson v. Stevens, 8 How. [U. S.] 384.) Whenever thereafter Lipman & Co. asked to substitute other similar goods of their own for those originally delivered as collateral, the surrender of an equal quan- tity of the original security of equal value would be a valuable con- sideration for the giving of the new security. The pledgee as to the latter would be a holder for value, and the exchange would have no effect upon the rights of the pledgee as founded upon the original con- tract. (Colebrooke on Col. Sec. § 15 ; Clark v. Iselin, 21 Wall. 360.) The same rule should apply where the goods offered in substitution and in exchange, for which goods already pledged are surrendered, are such as have beeii intrusted to the factor in the manner provided for by the Factors' Act, when the surrender is made upon the faith of the factor's possession. The conti*act for disposition of such goods is not for ' advances of money,' but it would be too narrow a construction of the state statute, which, according to the decisions of the state courts, should be liberally construed, to hold that one who parts with money's worth in the form of valuable property is deprived of its protection because he did not first transform such property into cash. When, therefore, Lipman & Co., after having deposited the 38 bales in ware- house, subject to their order, called upon the warehouse company to deliver 38 bales already covered by the pledged receipts, and with no older free bales than these to substitute in their place, they did in fact apply for an exchange of part of the security collateral to their loan, thus offering to pledge the new 38 bales if the old ones were delivered to them. The offer was accepted, and, on the faith of their possession of the bales which they thus offered to pledge, the older bales were given up to them. This was a valuable consideration, parted Avith in good faith, and entitles the person paying it to the protection of the Factors' Act, as against the plaintiffs (here the defendants), who had intrusted Lipman & Co. with the possession of the goods. Tlie trust compa])y, on December 15, 1892, had a valid lien on all of the 200 bales remaining in the warehouse under the two uncanceled open re- ceipts of December 1, 1891, and they certainly did not lose such lien by returning the original receipts to the warehouse and accepting in exchange a single one in their own name for the full account." We think the judgment should be affirmed, with costs. All concur, except Parker, Ch. J., not sitting, and Gray, J., absent JiuUjment affirmed} i The statement of facts in the opinion has been abbreviated. 498" COMMERCIAL BANK OF SELMA V. HURT. [CHAP. III. COMMERCIAL BANK OF SELMA v. HURT. SAME V. LEE. Alabama Supreme Court, November 2, 1892, January 31, 1893. [Reported in 12 Southern Reporter, 568; (7*. 572.] Walker, J. The claim of the appellant, the Commercial Bank of Selma, to the cotton involved in this suit rests upon a transfer and de- livery b}' the H. C. Keeble Company of warehouse receipts therefor as collateral security for a note made by that company to the bank. The H. C. Keeble Company was a corporation engaged in business as a cot- ton factor and grocery merchant in the city of Selma. The appellee, who was the owner of the cotton, had had it shipped to that company, with instructions not to sell it until ordered to do so. The consignee had the cotton stored in the warehouse of Philhps & Parish, and took the warehouse receipts therefor in its own name. No advances were made to the appellee on this cotton, and there is no evidence that he authorized the consignee to store it and take the warehouse receipts in its own name, or to pledge the cotton itself, or the warehouse receipts. Under the common law, a factor or commission merchant has no implied authority to pledge the goods of his principal for his own use. Unless the result is controlled by some statute, the attempted pledge does not work a divestiture of the title of the principal, and the party receiving such a pledge and advancing his money acquires no right to the [prop- erty as against the principal, whether he knew he was dealing with a factor or not. Bott v. McCoy, 20 Ala. 578 ; Voss v. Robertson, 46 Ala. 483; Allen v. Bank, 120 U. S. 20, 7 Sup. Ct. Rep. 460; 1 Lawson, Rights, Rem. & Pr. § 229. In England, and in several of the States in this country, statutes have been enacted for the protection of third per- sons who, in good faith and in ignorance of any defects of title, advance money or incur obligations on the faith of property which is apparently owned by the persons with whom they deal, who, however, in fact, hold it merely as factors or agents, having been intrusted by the owners with possession of the property or of documentary evidence of title to it. Soltau V. Gerdau, 119 N. Y. 380, 23 N. E. Rep. 864 ; Ilowland v. AVood- ruff, 60 N. Y. 73 ; Price v. Insurance Co., 43 Wis. 267 ; Macky w. Dillin- ger, 73 Pa. St. 85; George v. Bank, 41 Fed. Rep. 257. Decisions controlled by such statutes have no bearing upon this case, as we have no statute purporting to change the common-law rule which protects the owner against an unauthorized pledge of his property by one who, as factor or agent to sell, has been intrusted with the possession and cus- tody of it. No statute is appealed to which could give any color to a claim that an unauthorized pledge by a factor of the property itself which was intrusted to him would have any other effect as against the principal tlian was accorded to such a transaction by the common law. SECT. IV.] COMMERCIAL BANK OF SELMA V. HURT. 499 If tbe H. C. Keeble Companj-, instead of having the cotton stored in the warehouse of Phillips & Parish, had retained possession of it until, without an}- authority or license from the appellee, the cotton itself was delivered to the bank in pledge to secure the payment of the note of the II. C. Keeble Company, it is plain that the bank would not have acquired any greater title to the property than that company had to confer, and the appellee would have been entitled to recover the cotton from the bank, or to hold the bank liable for its conversion. But it is claimed that the factor, having stored the cotton in a warehouse, and obtained warehouse receipts therefor to itself, was enabled, by the transfer of those receipts, to confer upon the bank a claim to the cotton which must prevail against the title of the true owner. Section 1178 of the Code is relied upon as giving this efiect to the transfer of warehouse receipts by the persons to whom they are issued. The clause of that section upon which this claim is based is in the following words : " The receipt of a warehouseman, on which the words 'Not negotiable' are not plainly written or stamped, may be transferred by the indorsement thereof, and any person to whom the same is transferred must be deemed and taken to be the owner of the things or property therein specified, so far as to give validity to any pledge, lien, or transfer made or created by such person." Sections 1175, 1177-1179, of the Code, are based upon an Act approved February 28, 1881, entitled " An Act to prevent the issue of false receipts, and to punish the fraudulent transfer of property by warehousemen, wharfingers, and others." Acts Ala. 1880-81, p. 133. In the process of codification the provisions of that statute were re- drafted, and somewhat modified. But the provisions of the four sections above mentioned are all in furtherance of the main legislative purpose, which was indicated in the title and in the corresponding sections of the original Act. So far as warehouse receipts are concerned, the purpose of the statute is, in the first place, to prevent the issue of such receipts unless the property therein described has l)een actually received, and is in the possession of the person issuing the receipt. This purpose is manifested in section 1175 of the Code. The purpose, in the next place, is to give definite legal recognition to such receipts as true tokens of the possession of the property described in them ; and to regulate the manner in which the holder of such a token of possession ma}-, l)y an assignment of it, convey his interest in the property described as effectually as he could by a transfer and delivery of the 'property itself. The provisions to this end are embodied in sections 1177-1179. Un- doubtedly it was the intention of the legislature to facilitate and throw safeguards around dealings in personal property by the use of paper representative of it. To this end the holder of a warehouse receipt is so far ti'eatcd as the possessor of the property mentioned in it that his transfer of the receipt, m the mode prescribed by the statute, operates in the same manner as the direct delivery of the property itself would do. The transfer of the receipt is given eflTect as a symbolical delivery Df possession. The statute does not undertake to make the receipt 500 COMMERCIAL BANK OF SELMA V. HURT. [CHAP. III. better evidence of title than the actual possession of the property itself. AVe cannot conceive that it could have been within the contemplation of the legislature that the provisions of the statute would enable a thief, by depositing the stolen property with a warehouseman, and obtaining a receipt for it in due form, to confer upon an innocent purchaser for value and in good faith a claim to the property which would prevail against that of the true owner. In Collins v. Ralli, 20 Hun, 246, it was held that a New York statute substantially identical with the provision above quoted did not protect the purchasers for value and in good faith of warehouse receipts, when the possession of the cotton they represented by the person to whom they were issued had been larcenous. After quoting the statute, the court said : " The learned counsel for the defendants insist that the provisions of this section afford them complete protection against a re- covery in this action ; that, halving purchased the cotton upon the faith of the negotiable warehouse receipts, and paid therefor full market value, this case falls within the spirit and the letter of the section. All the other sections of this Act, except the last, which is unimportant, prohibit the issue of false receipts, etc., and prescribe the penalty for a violation of their provisions. The scope and object of the Act, there- fore, seems to be to protect the mercantile community against fraudulent practices by warehousemen, wharfingers, and others, in respect to these receipts for goods stored or represented to be stored with them. That this is the purpose is shown by the title of the Act. . . . The clause * warehouse receipts given for any goods . . . stored or deposited with any warehouseman ' means receipts given for goods so stored or deposited by any person having the title thereto, real or apparent, or authority of such person therefor. This section of the Act proceeds upon the as- sumption that the receipt is so issued. Any other construction would enable warehousemen to issue receipts for goods, known by them to be stolen, and so convey title to them, or even themselves to commit larceny, and, by issuing receipts for the stolen property, defraud the plundered owner of all title to and power of reclaiming it. Such a con- struction would work a change in the law hardly contemplated by the legislature when the Act under consideration was passed, and yet the construction insisted upon by the defendants would accomplish precisely this result. Courts often have to look beyond the mere words of a stat- ute in determining its meaning, and give to it such an interpretation as the mischief sought to be cured and the evident intention of the legisla- ture indicate." The judgment in that case was affirmed by the Court of Appeals (Collins v. Ralli, 85 N. Y. 637), and the decision has been ap- proved in subsequent cases (Hentz v. Miller, 94 N. Y. 64 ; Soltau v. Gerdau, supra) . To put it in the power of a factor to give effect to an unauthorized pledge of the property of his principal by resorting to the device of pledging a receipt for the property instead of the property it- self, would as clearly be an abridgment of the common-law rights of the owner as it would be to allow a thief, by using a receipt for the stolen SECT. IV.] COMMERCIAL BANK OF SELMA V. HURT. 501 property instead of the property itself, to defeat the common-law right of the owner to reclaim the stolen property in whosesoever hands it may be found. The statute under consideration does not purport to deal with the right of the owner of personal property to recover it from the one who claims under a disposition of it which was unauthorized by the owner. The object in view being to recognize dealings in personal property b}- the use of certain tokens of its possession, to prevent the issue of such tokens except when the property mentioned in them has actual!}' been received b}" the persons issuing them, and to regulate the transfer of the property by assignment of the token, as a substitute for actual delivery of the property. The statute was framed on the assump- tion that the possession of the propert}- by the person to whom the token was issued was accompanied b}' ownership and a right to dispose of it, and questions presented h\ the assertion of a paramount claim to the property were not dealt with by tlie statute, but were left to be de- termined b}' existing laws governing the right of the true owner of prop- ert}' to follow and reclaim it in the hands of persons claiming nnder an unauthorized disposition of it b}' one not the true owner, but in actual possession of it. Tliere is evidence in section 1178 of the Code of the absence of an}' intention to enable the holder of a warehouse receipt, by a transfer of it by indorsement, to confer any better claim to the prop- erty than he could if he had not stored the property with a warehouse- man, bul had invested the person with whom he dealt with actual possession of it. Immediatel}' after the clause already quoted from that section is the following provision: "But this section must not be so construed as to affect or impair the lien of a landlord on such things or property for rent or advances, or to affect or impair any lien thereon created by contract, of which notice is given by registration in the man- ner prescribed b}' law." It is not to be supposed that the legislature was more solicitous to protect the rights of lienholders than tliose of the owners of the propert}'. The assumption is that it is the owner who has had the property stored and obtained a warehouse receipt for it, and the provision just quoted simply makes it plain that he cannot, by a transfer of the receipt, any more than he could by a disposition of the property accompanied by an actual delivery of possession, affect or im- pair liens upon it. It is further provided in the same section that, " in the event of the loss or destruction of such receipt, tlie warehouseman, not having notice of the transfer thereof by indorsement, may make de- livery of tlic things or property to the rightful owner thereof; and if the things or property, or any part thereof, be claimed or taken from the custody or possession of the warehouseman under legal process, the surrender thereof may be made without delivery or cancellation of such receipt, or without indorsement thereon." The first of these two clauses shows that it was assumed that the receipt was issued to the rightful owner of the property. The second of them shows tliat it was no part of the legislative intention to make tlie fact that his receipt is outstand- ing a protection to the warehouseman against paramount claims to the 502 COMMERCIAL BANK OF SELMA V. HURT. [CHAP. III. property, or to displace, in the case of the issue of a warehouse receipt to another, the common-law rules governing the rights of the owner to recover liis [iroperty from a stranger claiming under a disposition of it not binding on him. The apparent object of the statutory provisions in reference to warehouse receipts is to give them, for purposes of com- merce, recognition and credit as substitutes for the property described in them, and to give dealings in them the same effect as similar deal- ings with the property itself. We think tliat tliey are made negotiable only in the sense that in their passage through the channels of commerce the law regards the property which they describe as following them, and gives to their regular transfer by indorsement the effect of a manual de- livery of the things specified in them. No intention is disclosed to give dealings in them an}- more controlling effect upon the title to the prop- erty they represent than would be given to similar dealings with the propert}- itself. At last they are mere tokens of possession, and no guaranties of title by the persons issuing them. The warehouseman holds himself out as the custodian for the legal holder of the receipt of the property mentioned in it, but he does not warrant the title of the property against the claims of strangers to the contract of storage. This view of the statute is well supported by pertinent authorities. By the express terms of the statute which was under consideration in the case of Insurance Co. v. Kiger, 103 U. S. 352, the unauthorized pledge by a factor of a warehouse receipt for the property of liis princi- pal was ineffectual as against the principal. On that ground the owner of the property in that case was held to be entitled to recover it, the adverse claim being under a pledge by the factor of warehouse receipts* for it. But in overruling the claim of the pledgee against the ware- houseman, based upon the provisions of the statute declaring warehouse receipts issued under it negotiable by indorsement, and making the warehouseman liable to the legal holder or owner of the receipt for the market value of the property therein described, the court said : " There is no pretence of fraud or collusion, and we think it would be a surprise to warehousemen to be told that when they issue their receipts for prop- erty in store they become not only resi)onsible as custodians of the property, but guarantors of its title to tjie assignees of the receipts. Such a "rule would make it necessary for a warehouseman, before giving a receipt, not only to ascertain whether he had the property actually in store, but whether the title of the bailor was valid and unincumbered. Certainly this could not have been in contemplation when warehouse receipts were made by statute negotiable, and to some extent evidence of ownership." In the course of the opinion, these expressions were used: " Undoubtedly the possession of the receipts was equivalent to the possession of the property. . . . The receipt in the hands of the company represented the cotton stored by Aiken & Watt, and gave the company the same rights it would have had if the cotton, instead of the receipts, had been handed over. The company got by the receipt such interest m the cotton as Aiken & Watt could by their pledge con' SECT. IV.] COMMERCIAL BANK OF SELMA V. HURT. 503 vey, and that is all Bo3-cl & Co. agreed to deliver on the return of their receipts by the lawful holder." In noticing a Missouri statute, almost iJentical in its title and provisions with the original Act ou which the sections of the Code under consideration were based, it was said in Allen V. Bank, 120 U. S. 20-35, 7 Sup. Ct. Rep. 460: "None of these pro- visions are limited or even addressed to factors or other agents author- ized to sell goods of their principals, and intrusted for that purpose with the possession either of the goods or of warehouse receipts, bills of lading, or other similar documents in which such agents are named as consignees. But their leading object is to regulate the manner and -effect of transferring warehouse receipts and bills of lading by indorse- ment." The meaning of the later statute which was relied on in that case was not determined b}" the court except to the extent of the decision that the pledgee of the warehouse receipts, without their indorsement in writing, was not entitled to its protection. As representatives of prop- erty, bills of lading and warehouse receipts are instruments of similar character. They are dealt with as substitutes for the property- itself. The assignment of a bill of lading for value, while the goods are in transit, is limited to the effect of sj-mbolizing their sale and delivery, and the assignee is thereby invested with all the rights of a purchaser with actual delivery of possession, but no more. Douglas v. Bank, 86 Ky. 176, S. W. Rep. 420 ; Moore v. Robinson, 62 Ala. 537. In Shaw V. Railroad Co., 101 U. S. 557, it was recognized that a statute declar- ing that bills of lading " shall be negotiable by written indorsement thereon and delivery, in the same manner as bills of exchange and promissory notes," should not, in the absence of language clearly evi- dencing such an intention, be construed as effecting such an innovation upon the common-law right of the owner of -property to protection against its misappropriation by others that such misappropriation could be successfully made by the use of a symbol or representative of the property, when it would not prevail against the claim of the owner if the possession of the property itself had been acquired in a similar man- ner. In National Bank of Commerce v. Chicago B. & N. R. Co., 44 Minn. 224, 46 N. W. Rep. 342, 560, the proposition was stated and ap- plied that it is always a good defence to a carrier, even against an inno- cent indorsee of the bill of lading, that the property was taken from its possession by one having a paramount title ; and it was decided that the correctness of this pro])osition was not affected by a statute which pro- vided that bills of lading or receipts for any goods, wares, merchandise, etc., when in transit by cars or vessels, " shall be negotiable, and may he transferred by indorsement and delivery of such recoii)t or bill of hiding, and any person to whom the said receipt or bill of lading may be transferred siiall be deemed and taken to be the owner of the goods, wares, or merchandise therein specified," etc. Mitchell, J., delivering the opinion of the court, said of this statute : " It was not intended to totally change the character of bills of lading, and put them on the foot- ing of bills of exchange, and charge the negotiation of them with tho 504 COMMERCIAL BANK OF SELMA V. HURT. [CIIAP. III. consequences which attend or tollow the negotiation of bills or notes. On the contrary, we think the sole object of the statute was to prescribe the mode of transferring or assigning bills of lading, and to provide that such transfer and delivery of these symbols of property should, for cer- tain purposes, be equivalent to an actual transfer and delivery of the property itself." Our conclusion is that it would be a perversion of the manifest purpose of the statute to construe it as having the effect of putting the symbol of the property upon a higher plane, as an evidence of title, than the actual possession of the property it describes. The statute does not undertake to make the transfer and delivery of the symbol more than the equivalent of an actual transfer and delivery of the property' itself. Conceding that the clause in the contract of pledge, " which cotton has been advanced upon by us to its full value," does not show that the pledgor's character as a factor was recognized in the transaction, and that it was the intention of the parties to limit the operation of the pledge to the pledgor's actual interest in the cotton by reason of ad- vances made upon it, we have, then, the simple case of a pledge by a factor of the property of his principal for his own use. The warehouse receipts which he obtained are to be regarded as the cotton itself which he held in the capacity of an agent to sell. We have no " Factors' Act" to raise up a statutory estoppel against the owner, based upon his act in intrusting the factor with possession of the goods, or docuraentarv evi- dence of ownership and right of disposal, and thereby leading innocent third persons to deal with the factor on the faith of his apparent owner- ship. There is nothing to take this case out of the influence of the common-law rule, which protects the owner of personal property against an unauthorized pledge of it b\' one who held it merely as factor or as agent to sell. The original defendants, the warehousemen, having dis- claimed all interest in the suit, the plaintiff was entitled to recover his cotton, and the claim of the bank, based upon the attempted pledge by the H. C. Keeble Company, presented no legal obstacle to the plaintiff's recovery. It affirmatively appears that the appellant was not injured by the admission of evidence of the market value of the cotton prior to the date of the transfer of the warehouse receipts. That evidence was that in September the cotton was worth 9§ cents per pound. The undis- puted evidence was that llie cotton was worth 9 cents per pound in I)ecember and January, after the transfer of the warehouse receipts. The jury assessed the value of all of it at only 9 cents per pound. This valuation was supported by the undisputed evidence, excluding the evi- dence ot the higher value in September. In view of the conclusion that on the undisputed evidence the plaintiff was entitled to recover, it is unnecessarj- to consider the various charges given and refused. Affii'med. Stoxe, C. J. The case of Commercial Bank v. Lee is in all material respects precisely like the case of Bai k i ■. lluct Jn the opinion in that SECT. IV.] COMMERCIAL BANK OF SELMA V. HURT. 505 case all the facts material to a consideration of tliis case are presented and commented on. Tlie claim of ttie Commercial Banlv in the present suit is the same as that asserted by it in its suit against Hurt. In this case the asserted claim to the cotton in controversy is by virtue of the identical indorsement of cotton receipts by the H. C. Keeble Company which was relied on in that case. The alleged transfer was indorsed on the back of the note which the H. C. Keeble Compan}' gaA'e the Com- mercial Bank of Selma, and is in the following words; "■ We hereby transfer two hundred and ninet^'-eight bales of cotton, marked, num- bered, and stored as shown in the warehouse receipts, which are herewith transferred and delivered as collateral for the within note, which cotton has been advanced upon b}' us to its full value ; and we hereby authorize the Commercial Bank of Selma to take actual possession of the same at any time they may desire, and to sell the same without notice, at public or private sale, applying the proceeds to the credit of this note. [Signed] H. C. Keeble Company." Accompanying the indorsement, the Keeble Company delivered to the bank warehouse receipts for the cotton which is the subject of this suit. Those receipts were signed by warehousemen, and in them they acknowledged they had received the cotton from the H. C. Keeble Company for storage, at the same time announcing therein that W. R. Lee was the shipper. The receipts also stated that the name W. R. Lee was marked on the cotton. It was an uncontroverted fact on the trial that the H. C. Keeble Compan}- was en- gaged in the sale of cotton as factors for their customers. There was no testimon}' offered tending to prove the truth of the recital in the in- dorsement that the PI. C. Keeble Company' had made advances on the cotton in controversy. The claim of the Commercial Bank is rested mainly on section 1178 of the Code of 188G, which reads as follows: " The receipt of a warehouseman, on which the words ' Not negotiable ' are not plain!}- written or stamped, may be transferred by the indorse- ment thereof, and any person to wliom the same is transferred must be deemed and taken to be the owner of the things or property therein specified, so far as to give validity to any pledge, lien, or transfer made or created by such person." This section of the Code of 1886 was doubtless taken from section 6 of the Act " To prevent the issue of false receipts," etc., approved Feb. 28, 1881 (Sess. Acts, 1880-81, p. 138). The rendering of the Statute in the Code of 1886 is not a literal copy of the original statute. Possibly it was the iutentioi^-to enil)()dy the same idea. As expressed in the Code, it may admit of question whether its lan- guage is broad enough to place the first indorsee of a warehouse receipt on the high ground claimed (or him in this suit. Literally that statute creates the presumption of ownership in the first indorsee so far only as to give validity to any pledge, lien, or transfer made or created "by such person." This language, if interpreted l)y grammatical rules, only author- izes the person to whom the warehouse receipt is indorsed to pledge or transfer it ; and only upholds tlie binding efficacy of such pledge or transfer, when made by the indorsee. Thus interpreted, the Commercial 506 COMMERCIAL BANK OF SELMA V. HURT. [CHAP. III. Bank can claim no benefit or advantage under that statute, because the pledge or transfer was not made by an indorsee of the warehouse re- ceipts. Possibly the original statute, as enacted by the legislature, is susceptible of a broader interpretation. We need not, however, decide this question. We prefer to place our decision on a different principle. It will be remembered that in the indorsement on the note by which the Keeble Company transferred to the Commercial Bank all the title or in- terest the latter can or does assert to the cotton is the following lan- guage : " Which cotton has been advanced upon by us to its full value.*' This language clearly and unmistakably shows that the Keeble Company was not the owner of the cotton in absolute right, but that the}' only claimed to have advanced upon it to its full value. This was notice to the bank that the Keeble Company was not the owner of the cotton, but that it asserted a lien upon it by virtue of advances alleged to have been made by it to the owner. And tliis notice was strengthened bj- the recital in the warehouse receipt that Lee was tlie shipper of the cotton. If this pertinent information had been followed up, the Commercial Bank could not have failed to learn the true title and status of the cotton. Notice, sufficient to put one on inquiry, is notice of all that such in- quiry will naturally lead to. This leads us to the inevitable conclusion that the bank, in receiving the transfer of the warehouse receipts, re- ceived them with the equivalent of notice of the true state of the account between the owner and shipper of the cotton and the Keeble Compaii}', the factor for its sale. From this it follows that the bank became the purchaser, not of the cotton, but only of the interest and claim which the Keeble Company owned and could assert. Such interest, acquired with such notice, is in no sense the character of interest which section 1178 of the Code intends to secure and protect in an indorsee of a ware- house receipt. It rests, not upon the strength of the indorsement made, but in the confidence the indorsee entertains in the assurance that the cotton had been advanced upon to its full value. The transaction does not fall within the influence of the statute invoked in its support. As said by Mr. Justice Bronson, in discussing this subject in a leading case : "■ It is impossible to suppose that the legislature intended a factor to commit a fraud upon his principal by pledging or obtaining advances upon the goods for his own purposes, when the pledgee or person mak- ing the advances upon the goods knew that he was not dealing with the true owner." Stevens v. Wilson, 6 Hill, 512, 3 Denio, 472 ; Warner v. Martin, 11 How. 209 ; Covell v. Hill, 6 N. Y. 374 ; Cartwright v. Wil- merding, 24 N. Y. 521 ; Dows v. Greene, id. 638 ; Howland v. Wood- ruff, 60 N. Y. 73 ; Allen v. Bank, 120 U. S. 20, 7 Sup. Ct. Rep. 460; Shaw V. Railroad Co., 101 U. S. 557. There is no error in the record. Affirmed. Note. — Factors Acts have been passed in the following States: Kentucky, Laws of 1880, May 5; Maine, Kev. St. c. 31; Maryland, Rev. Code, Art. 34; Massachusetts, Rev. L. c. 68'; Missouri, Rev. St. § 6281; New York, Acts of 1830, c. 179; Ohio, Rev. SECT. IV.] COMMERCIAL BANK OF SELMA V. HURT. 507 St. §§ .3215-3219 ; Pennsylvania, Brightly's Purdon's Dig. p. 77.3 ; Rhode Island, Pub. St. c. 136 ; Wisconsin, Kev. St. §§ 3345, 3346. Without the aid of statute a factor has power to sell on credit. Scott v. Surman, Willes, 400, 407 ; De Lazardi v. Hewitt, 7 B. Mon. 697 ; Greeiy ik Bartlett, 7 Greenl. 172, 179 ; Piukliam v. Crocker, 77 Me. 563 ; Goodenow v. Tyler, 7 Mass. 36 ; Roosevelt 1-. Uoherty, 129 Mass. 301, 303 ; Van Aleu v. Vauderjjool, 6 Johns. 69 , Geyer v. Decker, 1 Yeates, 486. But a pledge by a factor is not valid unless protected by statute. Cole v. North- western Bank, L. R. 10 C. P. 354 ; Johnson v. Credit Lyonuais Co., 3 C. P. D. 32 ; Warner v. Martin, 1 1 How. 209 ; Allen t: St. Louis Bank, 120 U. S. 20 ; Wright v. Solo- mon, 19 Cal. 64 ; Gray v. Agnew, 95 111. 315 ; First Nat. Bank v. Schween, 127 111. 573 ; Michigan State Bank v. Gardner, 15 Gray, 362, 374 ; Hazard v. Fiske, 83 N. Y. 287 ; Laussatt v. Lippiucott, 6 S. & R. 386 ; McCreary v. Gaines, 55 Tex. 485. Nor can a factor transfer title to his principal's goods by way of barter. Guer- reiro r. Peilc, 3 B. & Aid. 616; Warner v. Martin, 11 How. 209, 226 ; Potter v. Denni- son, 5 Gilm. 590 ; Benny v. Rhodes, 18 Mo. 151 ; Benny v. Pegiam, 18 Mo. 191 ; Hol- ton V. Smith, 7 N. H. 446. In Warner v. Martin, 1 1 How. 209, 224, Mr. Justice Wayne said in regard to wrongful transfers by a factor : — " When goods are so pledged or disposed of, the principal may recover them back by an action of trover against the pawnee, without tendering to the factor what mav Vje due to him, and without any tender to the pawnee of the sum for which the goods were l)ledged (Daubigney v. Duval, 5 T. R. 604) ; or without any demand of such goods (G East, 533 ; 12 Mod. 514) ; and it is no excuse that the pawnee was wholly ignorant that he who held the goods held them as a mere agent or f.actor (Martini v. Coles, 1 Maule & Selw. 140), unless, indeed, where the principal has held forth the agent as the prin- cipal (6 Maule & Selw. 147). But a factor who h.as a lien on the goods of his principal may deliver them over to a third person, as a security to the extent of his lien, and may appoint such person to keep possession of the goods for him. In that case the principal must tender the amount of the lien due to the factor, before he can be enti- tled to recover back the goods so pledged. Hartop v. Hoare, Str. 1187; Daubigny v. Duval, 5 T. R. 604 ; 6 PZast, 538 ; 7 East, 5 ; 3 Chitty's Com. Law, 193. So a sale upon credit, in.stead of being for ready money, under a general authority to sell, and in a trade where the u.sage is to .sell for ready money only, creates no contract between the ownerand the buyer, and the thing sold may be recovered in an action of trover. Palev, Principal and Agent, 109 ; 12 Mod. 514. Under any of these irregular transfers, courts of equity (as is now being done in this case) will compel the holder to give an account of the property he holds. " But it was .said, though a factor may not pledge the merchandise of his principal as a security for his debt, he may .sell to his creditor in payment of an antecedent debt. No ca.se can be found affirming such a doctrine. It is a misconception, arising from the misapplication of correct principles to a case not belonging to any one of them. The power of the factor to make such a .sale, and the rigiit of the creditor to retain the prop- erty, has been erroneously put upon its being the usual course of business between fac- tors to make a set-off of balances as they may exist in favor of one or the other of them against the price of sulisequent purchases in their dealings. The difference between snch a practice and a sale for an antecedent debt must be obvious to every one when it is stated. In the one, the mutual dealing between mercantile persons who buv and sell on their own account, and who also sell upon commission for others, is according to the well-known usage of trade. Its convenience rccpiires that such a practice shall be permitted. But it must be remembered it is an .allowance for the convenience of trade, and for a readier settlement of accounts between factors for their purcha.ses from each other in that character. It does not, however, in any instance, bind a princi])al in the transfer of merchandise, if there has been a departure from the usages of trade, or a violation of any principle regulating the obligations and rights of principal and factor. " Again, it has been suppo.sed that the right of a factor to .sell the merchandi.se of his principal to his own creditor, in payment of an antecedent debt, finds its sanction in 508 COMMERCIAL BANK OF SELMA V. HUKT. [CHAP. III. the fact of the creditor's belief that his debtor is the owner of the merchandise, and his ignorance that it lielorigs to another ; and if in the last he has been deceived, that the person by whom che delinquent factor has been trusted sliall be the loser. The prin- ciple does not cover the case. When a contract is proposed between factors, or betweea a factor and any other creditor, to pass property for an antecedent debt, it is not a sale in the le^al sense of tliat word or iu any sense in which it is used in reference to the commission which a factor has to sell. See Berry v. Williamson, 8 Howard, 495. It is not according to the usage of trade. It is a naked transfer of property in payment of a debt. Money, it is true, is the consideration of such a transfer, but no money passes between the contracting parties. The creditor pays none, and when the debtor has given to him the property of another in release of his obligation, their relation has only been changed by his violation of an agency which society in its business rela- tions cannot do without, which every man has a right to use, and wliich every person undertaking it promises to discharge with unbroken fidelit}'. When such a transfer of property is made by a factor for his debt, it is a departure from the usage of trade, known as well by the creditor as it is by the factor. It is more ; it is the violation of all that a factor contracts to do witli the property of his principal. It has been given to him to sell. He may sell for cash, or lie may do so upon credit, as may be the usage of trade. A transfer for an antecedent debt is not doing one thing or the otlier. Both creditor and debtor know it to be neither. That their dealing for such a purpose will be a transaction out of the usage of the business of a factor. It does not matter that the creditor mav not know, when he takes the property, that the factor's principal owns it ; that he believed it to be the factor's in good faith. His dealing with his debtor is an attempt between them to have the latter's debt paid by the accord and satisfaction of the common law. That is, when, instead of a sale for a price, a thing is given by the debtor to the creditor in payment, in which we all know that, if tlie thing given is the property of another, thei'e will be no satisfaction. It is the elation en pai/ement of the civil law as it prevails in Louisiana, wliich is, when a debtor gives, and the creditor receives, instead of money, a movable or immovable thing in satisfac- tion of the debt." SECT. I.] BEMENT V. SMITH. 509 CHAPTER IV. SPECIAL RIGHTS AND REMEDIES OF THE SELLER. SECTION I. Recovery of the Price. BEMENT V. SMITH. Supreme Court of New York, July Term, 1836. [Reported in 15 >Fenc/e//, 493.] This was an action of assumpsit, tried at the Seneca circuit in November, 1834, before tlie Hon. Daniel Moselej, one of the circuit judges. In March. 1834, the defendant employed the plaintiff, a carriage- maker, to build a sulky for him, to be worth ten dollars more than a sulky made for a Mr. Putnam ; for which he promised to pay $80, part in a note against one Joseph Bement, a brother of the plaintiff, for the sum of ten or eleven dollars, and the residue in his own note, at six or twelve months, or in the notes of other persons as good as his own. In June, 1834, the plaintiff took the sulk}- to the residence of the defendant, and told him that he delivered it to him, and demanded payment, in pursuance of the terms of the contract. The defendant denied having agreed to receive the carriage. Whereupon the plaintiff told him he would leave it with a Mr. De Wolf, residing in the neigh- borhood ; which he accordingly did, and in July, 1834, commenced this suit. It was proved that the value of the sulky was $80, and that it was worth $10 more than Putnam's. The declaration contained three special counts, substantially alike, setting forth the contract, alleging performance on tiie [)art of the plaintiff, by a delivery of the sulky, and stating a refusal to perform, on the part of the defendant. The declaration also contained a general count, for work and labor, and goods sold. The judge, after denying a motion for a nonsuit, made on the assumed grounds of variance between the declaration and proof, charged the jur}' that the tender of the carriage was substantially a fulfilment of the contract on the part of the plaintiff, and that he was entitled to sustain his action for the price agreed upon between the parties. The defendant's counsel requested the judge to charge the jury that the measure of damages was not the value of the sulky, but 510 BEMENT V. SMITH. [CHAP. IV. only the expense of taking it to the residence of the defendant, dela}-, loss of sale, &e. The judge declined so to charge, and reiterated the instruction tliat the value of the article was the measure of damages. The jury found for the plaintiff, with $83.26 damages. The defend- ant moved for a new trial. The cause was submitted on written arguments. W. H. Smithy for the defendant. O. If. Piatt and J. F. Stevens, for plaintiff. B^- the court, Savage, C. J. The defendant presents no defence upon the merits. His defence is entirely technical, and raises two questions: 1. Whether the tender of the sulk}- was equivalent to a delivery, and sustained the averment in the declaration that the sulky was delivered ; and 2. Whetlier the rule of damages should be the value of the sulivj-, or the particular da^nages to be proved, resulting from the breach of the contract. There is no question raised here upon the Statute of Frauds. The contract is therefore admitted to be a valid one ; and relating to something not 'm solido at the time of the contract, there is no question of its validity. The plaintiff agreed to make and deliver the article in question at a particular time and place, and the defendant agreed to pa}' for it, on deliverv, in a particular manner. The plaintiff made, and as far as was in his power, delivered the sulky. He offered it to the defendant at the place and within the time agreed upon. It was not the plaintiff's fault that the deliver}- was not complete, that was tlie fault of the defendant. There are many cases in which an offer to perform an executory contract is tantamount to a performance. This, I apprehend, is one of tliem. The case of Towers v. Osborne, Strange, 506, was like this. The question here presented was not raised, but tlie defendant tliere sought to screen himself under the Statute of Frauds. The defendant bespoke a chariot, and when it was made, refused to take it ; so far the cases are parallel. In an action for the value, it was objected that the contract was not binding, there being no note in writing, nor earnest nor delivery. The objection was overruled. In that case the action was brought for the value, not for damages for the breach of contract. This case is like it in that particular ; this action is brought for the value, that is, for the price agreed on ; and it is shown that the sulky was of that value. The case of Crookshank v. Burrell, 18 Johns. R. 58, was an action in which tlie plaintiff declared against tlie defendant on a contract whereby the plaintiff was to make the wood- work of a wagon, for which the defendant was to pay in lambs. The defendant was to come for the wagon. The question was upon the Statute of Frauds. Spencer, C. J., states what had been held in some of the English cases, 4 Burr. 2101, and 7 T. R. 14, that a distinction existed between a contract to sell goods then in existence, and an agreement for a thing not yet made. The latter is not a contract for the sale and purchase of goods, but a contract for work and labor merely. The case of Crookshank v. Burrell is much like this, with this SECT. I.] BEMENT V. SMITH. 511 exception : there the purchaser was to send for the wagon ; here the manufacturer was to take it to him. There it was held that the manu- facturer was entitled to recover, on proving that he had made the wagon according to the contract : here it is proved that the sulky was made, and taken to the place of delivery according to contract. The merits of the two cases are the same. It seems to be conceded that an averment of a tender of the sulky by the plaintiff, and a refusal of tlie defendant to receive it, would have been sufficient ; and if so, it seems rather technical to turn the plaintiff out of court, when he has proved all that would have been required of him to sustain Ins action. The plaintiff, in his special counts, does not declare for the sale and deliv- er\-, but upon the special contract; and herein this case is distinguish- able from several cases cited on the part of the defendant, and shows that it was not necessary to have declared for goods bargained and sold. It seems to me, therefore, that the judge was right in refusing the nonsuit, and in holding that the evidence showed substantially a fulfilment of the contract. The variance as to the amount of Joseph Bement's note, I think, is immaterial ; but if otherwise, it may be amended. The alleged variance as to the price of the sulky is not sustained by the facts of the case. The only remaining question, therefore, is as to the damages which the plaintiff was entitled to recover. It is true that the plaintiff does /' not recover directly as for goods sold ; but in the case of Towers v, Osborne the plaintiff recovered the value of the chariot, and in Crook- shank V. Burrell the recover}' was for the value of the wagon. The amount of damages which ought to be recovered was not the question before the court in either of those cases ; but if the value of the article was not the true measure, we may infer that the point would have been raised. Upon principle, I ma}' ask, what should be the rule? A me- chanic makes an article to order, and the customer refuses to receive it : is it not right and just that the mechanic should be paid the price agreed upon, and the customer left to dispose of the article as he may? A contrary rule might be found a great embarrassment to trade. The mechanic or merchant, upon a valid contract of sale, may, after refusal to receive, sell the article to another ^nd sue for the difference between the contract price and the actual sale. Sands and Crum)) ik Taylor and Lovett, 5 Johns. R. 395, 410, 411 ; 1 Salkeld, 113 ; 6 Modern, 162. In the first of these cases, the plaintiffs sold the defendants a cargo of wheat. The defendants received part, but refused to receive the remainder. The plaintiffs tendered the remainder, and gave notice that unless it was received and paid for, it would be sold at auction, and the defend- ants held responsible for any deficiency in the amount of sales. It was held, upon this part of tlie case, that the subsequent sale of the residue was not a waiver of the contract, the vendor being at lil)erly to dispose of it bona fide, in consequence of the refusal of the purchaser to accept the wheat. This case shows that where there has been a valid contract i of sale, the vendor is entitled to the full price, whether the vendee 512 BEMENT V. SMITH. [CHAP, FV. receive the goods or not. I cannot see wh}- the same principle is not applical)lc in this case. Here was a vahd contract to make and deliver the sullvv. Tlie plaintiff performed the contract on his part. The defendant refused to receive the sulk}-. The plaintiff might, upon notice, have sold the sulky at auction, and if it sold for less than $80, the defendant must have paid the balance. The reason given by Kent, C. J., 5 Johns. R. 411, is, that it would be unreasonable to oblige him to let the article perish on his hands, and run the risk of the insolvency of the buyer. But if after tender or notice, whichever may be neces- sar}-, the vendor chooses to run that risk and permit the article to perish, or, as in this case, if he deposit it with a third person for the use of the vendee, he certainl}' must have a right to do so, and prose- cute for the whole price. Suppose a tailor makes a garment, or a shoe- maker a pair of shoes, to order, and performs his part of the contract, is he not entitled to the price of the article furnished? I think he is, and that the plaintiff in this case was entitled to his verdict. The question upon the action being prematurely brought before the expiration of the credit which was to have been given, cannot properly arise in this case, as the plaintiff recovers upon the special contract, and not upon a count for goods sold and delivered. JSFew trial denied} ^ "The vendor of personal property, in a suit against the vendee for not taking and paying for the property, has the choice ordinarily of either one of three metliods to in- demnify himself : (1 ) He may store or retain tlie property for the vendee, and sue him for the entire purchase price ; (2) he may sell the property, acting as the agent for this purpose of the vendee, and recover the difference between the contract price and the price obtained on such resale ; or, (3) he may keep the property as his own, and recover the difference between the market price at the time and place of delivery, and the contract price." Dustan v. McAndrew, 44 N. Y. 72. 78, fr Earl, 0. Habeler v. Rogers, 131 Fed. Rep. 43, 45 (C. C. A.); Kinkead v. Lynch, 132 Fed. Rep. 692; Magnes v. Sioux City Seed Co., 14 Col. App. 21'J; Darby v. Hall, 3 Pennewill (Del.), 25; Ames v. Moir, 130 111.' 582; Comstock v. Price, 103 111. App. 19; Kastetter v. Reynolds, 160 Ind. 133, 1-39; McCormick Machine Co. v. Markert, 107 la. 340; Ball ??. Off utt, 10 Hush, 632 {conf. Singer Mfg. Co. v. Cheney, 21 Ky. L. Rep. 550); Mclntyre v. Kline, 30 Miss. 361; Atkinson r. Truesdell, 127 N. y". 2-30; Van Brocklin v. Smeallie,'l40 N. Y. 70; Cragin V. O'Connell, 50 N. Y. App. Div. 339, 109 N. Y. .573; Levy v. Glassberg, 92 N. Y. Supp. 50 (X. Y. App. Div.); Shawhan v. Van Xest, 25 Ohio St. 490; Rhodes v. Mooney, 43 Ohio St. 42i, 425; Smith r. Wheeler, 7 Oreg. 49; Ballentine v. Robinson, 46 Pa. 177; Reynolds V. Calender, 19 Pa. Super. Ct. 610; Pratt v. S. Freeman & Sons Co., 115 Wis. 048, ace. See also Dwiggins v. Clark, 94 Ind. 49; Black River Lumber Co. v. Warner, 95 Mo. 374; Gordon v. Norris, 49 N. H. 376. Atkinson v. Bell, 8 B. & C. 277 (see also Elliott v. Pybus, 10 Bing. 512); Grier v. Simp- son, 8 Houst. 7; John Deere Co. v. Gorman, 9 Kan. App. 075; Moody v. Brown, 34 Me. 107; Tufts f. Grewer, 83 Me. 407; Greenleaf r. Gallagher, 93 Me. 549;'Greenleaf v. Ham- ilton, 94 Me. 118; Tufts v. Bennett, 163 Mass. 398; McCormick Machine Co. v. Balfanj', 78 Minn. 370; First Bank v. Ragsdale, 171 Mo. 168, 185 (conf. Ozark Lumber Co. v. Chi- cago Lumber Co., 51 Mo. App. 555); Funke v. Allen, 54 Neb. 407; Unexcelled Fire Works Co. V. Polites, 1.30 Pa. 5-36; Puritan Coke Co. v. Clark, 204 Pa. 550; Gammage v. Alexan- der, 14 Tex. 414; Tufts v. Lawrence, 77 Tex. 526; Rider v. Kelley, 32 Vt. 208; American Leather Co. v. Chalklev, 101 Va. 458, 463, contra. See also Morris v. Cohn, 55 Ark. 401; Dowagiac Mfg. Co. v. Mahon, 101 N. W. Rep. 903 (N. Dak.). SECT. I.] WHITE V. SOLOMON. 513 JAIklES T. WHITE & another v. JAMES M. SOLOMON^ Supreme Judicial Court of Massachusetts, November 23-26, 1895. [Reported in 164 3fassachnsetts, 516.] Holmes, J. This is an action upon the following contract : " White's Physiological Manikin. " Place and date : 75 Court Street, Boston, Mass., June 7, 1889. " Messrs. J. T. White & Co., Publishers, New York. ** Gentlemen : Please deliver according to shipping directions given below, one White's Physiological Manikin, Medical Edition, price ^35.00. In consideration of its delivery for me, freight prepaid, at the express office specified below, I promise to pay the sum of $35.00 as follows : $10.00 upon delivery at the express office, and the bal- ance in monthly payments of $5.00, each payable on the first of each and every month thereafter, uutil the whole amount is paid, for which the publishers are authorized to draw when due. " It is expressly hereby agreed that in case of the failure to pay any one of the said instalments after maturity thereof, all of said instalments remaining unpaid shall immediately become due and pay- able, and the said James T. White & Co. may take or cause to be taken the said manikin from the possession of the said or their representatives, to whom he may have delivered the same with- out recourse against said James T. White & Co. for any money paid on account thereof. It being expressly agreed that the money paid on account shall be for the use and wear of said manikin. " Shipping directions to be filled out by the agent. " To whom sent. J. M. Solomon. 75 Court Street. Town, Boston. County of Suffolk. State, Massachusetts. " James M. Solomon, 75 Court Street, Agent W. F. Byrd." There was evidence, and we must assume the judge who tried the case to have found, that the manikin was delivered as agreed to the express company, freight prepaid, that the defendant refused to re- ceive it, that in consequence the express company after a time left the manikin at the plaintiffs' place of business, in pursuance of a rule of tlie company and without the plaintiffs' assent, and that it is held subject to the defendant's order. There had been no repudiation of the contract by the defendant before the delivery of the manikin at the express office. The main question is whether the judge who tried the case ought 514 WHITE V. SOLOMON. [cHAP. IV. to have ruled that '"'the plaintiffs are not entitled to recover the price of the article in question, but must offer evidence to the court upon the question of damages for the alleged breach of said contract." A majority of the court are of opinion that this ruling properly was refused. We assume in favor of the defendant, but without deciding, that the title to the manikin did not pass by delivery at the express office, but that assumption does not dispose of the case. In an ordi- nary contract of sale the payment and the transfer of the goods are to be concurrent acts, and if the buyer refuses to accept the goods, even wrongfully, he cannot be sued for the price, because the event on which he undertook to pay the price has not happened ; and al- though the fact that it has not happened is due to his own wrong, still he has not promised to pay the price in the present situation, but must be sued for his breach of contract in preventing the event on ■which the price would be due from coming to pass. The damages for such a breach necessarily would be diminished by the fact that the vendor still had the title to the goods. But in the case at bar the buyer has said in terms, that although the title does not pass by the delivery to the express company, if it does not, delivery shall be the whole consideration for an immediate debt (partly solvendum in futnro) of the whole value of the manikin, and that the passing of the title shall come as a future advantage to him when he has paid the whole. The words " in consideration of its delivery " are not accidental or insignificant. The contract is carefully drawn, so far as to make clear that the vendors intend to reserve unusual advantages and to impose unusual burdens. We are not to construe equities into the contract, but to carry it out as the parties were content to make it. If a man is Avilling to contract that he shall be liable for the whole value of a chattel before the title passes, there is nothing to prevent his doing so, and thereby binding himself to pay the whole sura. See the observations of Blackburn, J., in Martineau v. Kitch- ing, L. R. 7 Q. B. 436, 455. Benjamin, Sales, (4th ed.) 716, 717. When, as here, all the conditions have been complied with the per- formance of which by the terms of the contract entitles the vendors to the whole sura, if the vendors afterwards have not either broken the contract or done any act diminishing the rights given them in express words, the buyer cannot by an act of his own repudiating the title gain a right of recoupment, or otherwise diminish his obligation to pay the whole sura which he has promised. See Smith v. Bergen- gren, 153 Mass. 236, 238. If the first payment of ten dollars upon delivery were to be made upon delivery to the buyer, it well may be that, if the buyer refused to accept the manikin or to pay the ten dollars, the sellers' only remedy would be for a breach, and that they could not leave the mani- kin at his house and waive the payment against his will, with the result of making the whole sum due. But here the delivery is to be to an express company and the provision for payment of ten dollars SECT. I.] TUFTS V. GRIFFIN. 515 " upon delivery at the express office " must mean after the delivery, so that the delivery is the first act, and by itself without more fixes the rights of the vendors to the price, just as the transfer of the stock did in Thompson v. Alger, 12 Met. 428, 444. Our decision is in accord with the following cases ; we know of no decisions to the contrary. Marvin Safe Co. v. Emanuel, 21 Abb. N. C. 181. Brewer v. Ford, 54 Hun, 116, 120 ; s. c. 59 Hun, 17, 19 ; 126 N. Y. 643. Carnahan v. Hughes, 108 Ind. 225.^ See further Burnley v. Tufts, 66 Miss. 48; Tufts V. Griffin, 107 K. C. 47 ; but compare Tufts v. Grewer, 83 Maine,- 407 ; Swallow v. Emery, 111 Mass. 355, 357. Two remaining exceptions may be disposed of in a few words. It is objected that a deposition of one of the plaintiffs was not admis- sible because he refused to answer a cross-interrogatory. The cross- interrogatory was whether or not one Byrd had made other sales than the contract in suit for the plaintiffs. It does not appear to have been material. Therefore the deposition properly was admitted. We need not consider whether, if the question had been material, the de- position ought to have been excluded unless before the trial the defect had been brought to the attention of the court that it might pass such order on the subject as should seem proper. It was objected that 'there was no evidence of the defendant's sig- nature. But the defendant's answer to an interrogatory, " The signa- ture resembles mine. I wish to have the contract identified before answering further," coupled with the absence of any later denial, was enough. Exceiytions overruled.^ JAItlES W. TUFTS v. J. S. GRIEFIN. North Carolina Supreme Court, September Term, 1890. [Reported in 107 North Carolina, 47.] Shepherd, J. This is a case of the first impression in this State. We have here an absolute promise of the defendant to pay the plain- tiff a certain sum, it being the balance of the purchase-money due the plaintiff upon the sale of a soda apparatus to the defendant. The sale was a conditional one (see Clayton v. Hester, 80 N. C. 275 ; Frick V. Hilliard, 95 IST. C. 117, and the cases cited), and under the contract, the defendant took the apparatus into his possession and used it in all respects as his own. AVitliout any negligence on the part of the defendant, and before any default in the payment of the •purchase-money, the property was destroyed by fire. The question is, who shall bear the loss ? The defendant insists 1 Smith r. Aldrich, 180 Mass. 3G7; Gray v. Booth, G4 N. Y. App. Div. 231; National Cash Register Co. v. Hill, 48 S. E. Rep. G37 (N.C.); Tufts v. I'oness, 32 Ont. 51. 2 Field, C J., wrote a dissenting opinion in which Allen and Morton, JJ., concurred. 516 TUFTS V. GRIFFIN. [CIIAP. IV. that it should fall upon the plaintiff, because the transaction amounted to nothing more than an executory agreement to sell, and that, inas- much as the plaintiff cannot now perform the contract, the defendant should not be compelled to pay. It is very true that such contracts are sometimes called executory (as in the case of Ellison v. Jones, 4 Ired. 48), and the vendee is also termed a bailee (Perry v. Young, 105 IST. C. 466), but it must be observed that these expressions are used in reference to the strict legal title to the property, and they can, therefore, have no influence in the determination of the present question, which is purely one of consideration for an absolute promise to pay. The recent decision in Tufts v. Burnley (6Q Miss. 49) is directly in point. There, it seems that this same plaintiff sold a soda apparatus under a contract precisely similar to this, and the property was de- stroyed, as in this case, after some of the notes had been paid and before the maturity of the others. The Court decided that the plain- tiff w^as entitled to recover the amount due upon the remaining notes. As we entirely concur in the reasoning upon -which the decision is based, we will reproduce a part of the language of the opinion. The Court says : " Burnley unconditionally and absolutely promised to pay a certain sum for the property, the possession of which he received from Tufts. The fact that the property has been destroyed while in his custody, and before the time for the payment of the note last due, on payment of which only his right to the legal title of the property would have accrued, does not relieve him of payment of the price agreed on. He got exactly what he contracted for, viz., the possession of the property and the right to acquire an absolute title by payment of the agreed price. The transaction was something more than an executory conditional sale. The seller had done all he was to do, except to receive the purchase-price ; the purchaser had received all that he was to receive as the consideration of his promise to pay. The inquiry is not whether, if he had foreseen the contingency which has occurred, he would have provided against it, nor whether he might have made a more prudent contract, but it is whether, by the contract, he has made his promise absolute or conditional. The contract was a lawful one, and, as we have said, imposed upon the buyer an absolute obligation to pay. To relieve him from this obligation, the Court must make a new agreement for the parties, instead of enforcing the one made, which it cannot do." As is said in the foregoing extract, the vendor has done all that he was required to do, and the transaction amounted to '• a condi- tional sale, to be defeated upon the non-performance of the condi- tions. . . . The vendee had an interest in the property Avhich he could convey, and which was attachable by his creditors, and which could be ripened into an absolute title by the performance of the condtions." 1 Whart. Cont. 617. The vendee had the actual legal and rightful possession, with a SECT, II.] LANGFOET V. ADMINISTKATKIX OF TILEK. 517 right of property upon the payment of the money. Vincent v. Cor- nell, 13 Mass. 296. The vendor could not have interfered with this possession " until a failure to perform the conditions." Newhall v. Kingsbury, 131 Mass. 445. Having acquired these rights under the contract, and the property having been subjected to the risks incident to the exercise of the ex- clusive right of possession, it would seem against natural justice, to say that there was no consideration for the promise, and that the loss should fall upon the plaintiff. The case of Swallow v. Emery, 111 Mass. 556 (cited by the defend- ant) may perhaps be distinguished from ours, because it was agreed that, upon the payment of the price, the vendor was to execute a bill of sale to the vendee. However this may be, we think that the princi- ples enunciated in Tufts v. Burnley, supra, are better sustained, both by reason and authority, and we therefore affirm the judgment of the Court below. No error} SECTION II. Liens and their Enforcement. LANGFORT v. ADMINISTRATKIX OE TILER. At Guildhall, Easter Term, 1704. [Reported in 1 Salkeld, 113.2] The defendant, who was administratrix to her late husband, used to deal in tea in his lifetime, and bought four tubs of the plaintiff at so much per tub, one of which she paid for and took away, leaving £50 in earnest for the other three ; and Holt, C. J., ruled, 1st, That the husband was liable upon the wife's contract, because they cohabited. 2dly, That notwithstanding the earnest, the money must be paid upon fetching away the goods, because no other time for payment is ap- pointed. 3dly, That earnest only binds the bargain, and gives the party a right to demand; but then a demand without the payment of the money is void. 4thly, That after earnest given, the vendor can- not sell the goods to another, without a default in the vendee ; and therefore Jf the vendee does not come and pay and take the goods, the 1 Chicafco Equipment Co. v. Merchants' Bank, 13(i U. S. 208, 283; Buvnlpy v. Tufts, 66 Miss. 48; Tufts v. Wynne, 45 Mo. App. 42 ; Topp v. White, 12 Ileisk. 105; Goldie v. liar, per, 31 Out. 284, ace. See also Osborn v. South Shore Co., 91 Wis. 52G; Ilesselbacher t>. Bal'lantvno, 28 Out. 182. Arthur v. Blackinan, 63 Fed. Rep. 536; Bishop «. Minrterhout, 128 Ala. 162; Handle v. Stone, 77 Ga. 501 ; (Jlisson v. Heggie, 105 Ga. 30, 32; Mountain City Co. v. Butler, 109 Ga. 469; Swallow v. Emery, 111 Mass. 355; Sloan v. McCarty, 134 Mass. 24.5, contra. 2 Also reported, subnom. Langford v. Tyler in Holt, 96 and Mod. 162. 618 MARTINDALE V. SMITH. [CHAr. IV. vendor ought to go and request him ; and then if he does not come and pay, and take away the goods in convenient time, the agreement is dissolved, and he is at liberty to sell them to any other person. MARTINDALE v. SMITH. In the Queen's Bench, April 15, 1841. [Reported in 1 Queen's Bench, 389.] Trover for goods and chattels, to wit, six stacks of oats, etc., of which plaintiff was lawfully possessed as of his own property. Pleas. 1. Not guilty. 2. That plaintiff was not possessed of the goods and chattels as of his own property, in manner, form, etc. Issues thereon. On trial before Alderson, B., at the Cumherland Spring Assizes, 1839, it appeared that defendant, being owner of six stacks of oats then standing on his ground, sold them to the plaintiff, under the following written contract. '•' J;?r/Z 23d, 1838. Sold to Mr. John Martindale of Catterlen six oat stacks, for 85Z. John Smith gives John Martindale liberty to let the stacks stand, if he thinks fit, until the middle of August next ; and John Martindale to pay John Smith for the stacks in twelve weeks from the date hereof." Signed by the parties. In the beginning of July, the defendant told the plaintiff that, if tie, plaintiff, did not pay on the 16th of that month, defendant would consider the contract at an end. The plaintiff did not pay on that day, but afterwards requested time, which the defendant refused to give, adding that plaintiff, as he had failed in payment at the time appointed by the contract, should not have the stacks. Two or three days afterwards, the plaintiff tendered the money ; which the defend- ant refused to accept. On the 14th of August, the plaintiff served defendant with a written notice, in which he repeated the tender, and stated that he should attend to remove the stacks on the next day at ten in tlie morning, and demanded that he should then be admitted 1-0 the field in which the stacks were, requiring the defendant not to sell them. An actual tender was then again made, and refused : and defendant afterwards sold the stacks. The defendant's counsel con- tended that plaintiff, having made default in payment at the appointed day, was not entitled to the possession. The learned judge directed a verdict for the jilaintiff, giving leave to move to enter a verdict for the defendant on the second issue. In Easter term, 1839, Dundas obtained a rule accordingly. Alexander and Knowles showed cause. Cresswellf Dundas and Ramshay, contra. SECT. II.] MARTINDALE V. SMITH. 519 Lord Denmax, C. J., now delivered the judgment of the Court. After stating the facts, his lordship proceeded as follows. Having taken time to consider our judgment, owing to the doubt excited by a most ingenious argument, whether the vendor had not a right to treat the sale as at an end and reinvest the property in him- self by reason of the vendee's failure to pay the price at the appointed time, we are clearly of opinion that he had no such right, and that the action is well brought against him. For the sale of a specific chattel on credit, though that credit may be limited to a definite period, transfers the property in the goods to the vendee, giving the vendor a right of action for the price, and a lien upon the goods, if they remain in his possession, till that price be paid. But that default of payment does not rescind the contract. Such is the doctrine cited by Holroyd J., from Co7)i. Dig. Agreement (B. 3), in Tarling v. Baxter ^ ; and it will be found consistent with all the numerous cases referred to in the course of the argument. In a sale of chattels, time is not of the essence of the contract, unless it is made so by express agreement, than which nothing can be more easy, by introducing conditional words into the bargain. The late case of Stead v. Dawber ^ does not apply, depending (as Parke B. truly observed in Marshall v. Lynn'), not on the materiality of the alteration in the contract, but on the fact of the alteration only, Pothier, in his Traite du contrat de vente, part v. ch. 2, 6,* cites the civil code for the proposition, that a purchaser's delay in pa3dng the price does not give the vendor a right to require a dissolution of the contract ; he can only exact by legal procedure the payment of the price due to him. "Non ex eo, quod emptor non satis conven- tioni fecit, contractus irritus constituitur." ^ He adds, however, that, from the difficulty of enforcing i^ayment from debtors, the French law had departed from the rigor of these principles, permitting a suit for the dissolution of the contract for default of payment. The judge then appointed a more distant daj^ ; which passed, and no pay- ment made, the vendor was permitted to resume possession of the thing sold. But, even after sentence of dissolution, the purchaser may prevent that effect, and keep what he had bought, by appealing, and offering, on that appeal, the price which he owes, with interest and expenses. The vendor's right, therefore, to detain the thing sold against the purchaser must be considered as a right of lien till the price is paid, not a right to rescind the bargain. My brother Alderson directed the jury according to these principles ; and the rule for setting aside the verdict must be discharged. Eule discharged.^ 1 6 B. & C. 360, 362. 2 lo A. & E. 57. » 6 M. & W. 117. * Art. 475. (CEuvres, torn. 1, p. 640, 2d cd.) » Cod. lib. iv. tit. 44, s. 14. 6 Pape V. Cowasjee P>duljee L. K., 1 F. C. 127, ace. See also Chapman v. Morton, 11 M. & W. 534. See, however, Sale of Goods Act, § 48. 520 OGG V. SHUTEE. [CIIAP. IV. OGG V. SHUTER. In the Common Pleas, January 22, 1875. [Reported in Law Reports, 10 Common Pleas, 159.] In the Court of Appeal, November 23, 1875. [Reported in 1 Common Pleas Division, 47.] Declaration for a conversion of 251 sacks of potatoes. Pleas : Not guilty ; and that the goods were not the plaintiffs' as alleged. Issues thereon. At the trial, before Keating, J., the facts were as follows: The plaintiffs had, in January, 1874, entered into a contract with Mons. Paresys Loutre, of Merville, in France, for the purchase from him of potatoes. The contract was contained in several letters between the purchasers and the vendor. The terms ultimately agreed on were as follows, viz. for twenty tons of potatoes at 84 francs per 1,000 kilo- grammes, deliverable in the course of the current month free on board of a ship at Dunkirk, payment to be by cash against bill of lading signed by the captain. It was also stipulated that there should be a part payment in earnest of the bargain. The plaintiffs paid £30 in part payment, and potatoes were shipped under the contract on board the ship " Blonde," at Dunkirk, for London, in sacks sent over for the purpose by the plaintiffs, under a bill of lading wliicli made them deliverable to order. The vendor indorsed the bill of lading to the defendant, and instructed him to present the draft for the balance of tlie purchase-money to the plaintiffs against the bill of lading. On the arrival of the " Blonde " in the Thames, and before her cargo was discharged, it was erroneously supposed by the plaintiffs, for some reason or other which did not very clearly appear, that the shipment was sixteen sacks short, and, consequently, when the draft was presented by the defendant they declined to accept for the full amount on the ground that the shipment was short, but stated that if on discharge of the cargo it proved that the full quantity was on board they would immediately accept the draft, or, if preferred, that they were ready to pay the amount of the purchase-money due, after de- ducting for the sixteen sacks, immediately. The defendant said that if the shipment proved short it would be made good, but he would be satisfied with nothing but immediate acceptance of the draft, and on the plaintiffs not accepting, sold the potatoes forthwith ; the price of potatoes having risen considerably in the mean time. It appeared when the ship was unloaded that tlie full quantity was on board, and the plaintiffs then claimed the goods, and were ready to pay the price, but the goods were delivered to the defendant's vendee. On these facts, the verdict by consen/; was entered for the plaintiffs SECT. II.] OGG V. SHUTER. 521 for £32 lis. 6cL damages, leave being reserved to the defendant to move to enter a verdict, on the ground that neither the property nor the possession of the goods had passed to the plaintiffs, the Court to have power to draw inferences of fact. A rule nisi had been obtained accordingly. Cur. adv. vult. Lord Coleridge, C. J. The facts in this case are shortly these. There is a contract for the sale of potatoes by the person whom the defendant represents to the plaintiffs, to be delivered free on board within a month, and payment is to be by cash against bill of lading. The goods are shipped in the plaintiffs' sacks, under a bill of lading, which is indorsed to the defendant. A part payment of £30 is made. The action being for a conversion of the potatoes by the defendant, it was objected by his counsel tliat the property in the potatoes had never passed to the plaintiffs. It was contended on the other side that the property had passed, and that the vendor had merely reserved a lien on the goods for the price. My brother Keatiug directed a verdict for the plaintiffs, reserving leave to the defendant to move. I am of opinion that his ruling was correct. The result of the de- cisions which were cited is, that the question whether the property in goods has passed under a contract of sale is a question of intention to be gathered from all the circumstances, the expressions made use of in the contract, and also the surrounding circumstances. In the case of a specific chattel, the rule is that tlie sale passes the property. So also the general rule, as laid, down in several cases, is that, in the absence of countervailing circumstances, the specific appropriation of goods to the contract, by their being placed in vessels or receptacles provided by the purchasers, w^ould pass the property. Here tlie pota- toes were separated from a larger bulk, and placed in the plaintiflTs sacks, which had been sent over for the purpose. In addition to this very strong fact there is also the expression " free on board" in the contract, which has in previous cases been relied on, not as absolutely conclusive to show that the property passed, but as a strong element to be considered in favor of tliat conclusion. There is also the further fact that there was a part payment of £30. All these are very strong circumstances to show that the property passed ; but it is con- tended, on the other hand, that the expression, " cash against bill of lading," in the contract, is of itself conclusive to ascertain the inten- tion of tlie vendor ; that, the bill of lading being the indicium of pro- perty, the fact that the purchaser was not to receive it until he paid the price unmistakaijly indicated the intention that till then the pro- perty should not pass. In support of this view a great many cases and dicta of judges were cited. These authorities appear to me to go no further than tlic conclusion that, in the a])sence of countervailing circumstances, the stipulation for cash against bill of lading would have been conclusive. In like manner many of the circumstances ex- 522 OGG V. SHUTER. [CHAP. IV. istiug in this case have been held, iu the absence of countervailing circumstances, to be conclusive evidence of an intention to pass the proporty. There is also another strong fact against the plaintiffs' contention, viz. that the bill of lading was indorsed to the order of the defendant; but that again is only evidence of the intention, and may be rebutted by contrary evidence. The rule as deducible from all the cases, and as it is laid down in the learned works of Mr. Justice Blackburn and Mr. Benjamin on Sale, is, that the question whether the property has passed being one of intention to be collected from all the circumstances, no single circumstance is necessarily conclusive in all cases, but the conclusion to be drawn must depend on a balance of the various circumstances on one side and the other. The question is therefore one of fact for a jury, and we have here — being placed in the position of a jury — to determine it as a question of fact. I am of opinion that, taken altogether, the evidence in this case shows that it was intended by the parties that the property should pass at Dun- kirk. There was another point raised as to the form of the action to which it is necessary to advert. It was contended that tlie plaintiffs could not maintain trover because there was at least a lien on the part of the vendor. This question appears to me to depend on the ques- tion whether there was an absolute refusal by the plaintiffs to accept the bill of excliange m compliance with the terras of the contract. If there was, our decision on this point must be for the defendant. The facts, however, do not appear to me to show that there was such a re- fusal on the part of the plaintiffs to accept the bill. "When the pota- toes arrived, it was supposed by both parties that there were sixteen sacks short. The plaintiffs said that they could not accept the bill for the price of the full number when they were sixteen short ; that they were quite ready immediately to pay the amount less the deficiency, or if the defendant liked to wait till the vessel was unloaded, they would accept for what was actually on board. The defendant would be satisfied with nothing else than the immediate and absolute accept- ance of the bill for the full amount. The plaintiffs never refused to comply with the contract ; and when it turned out that the parties were mistaken, and the full quantity was on board, the}' were perfectly willing to have taken the whole. Under these circumstances it appears to me that the right of lien did not exist, and the right of possession as well as of property had passed to the plaintiffs. This rule must therefore be discharged. Grove, J. I am of tlie same opinion. ]\Ir. Willis appeared at first disposed to contend that the term " cash against bill of lading " was absolutely conclusive evidence of the intention not to pass the pro- perty ; but finding that he could not sustain this view, he argued that it was pnV/id /acre conclusive, and that there was no circumstance in the present case suflBcient to rebut it. Standing by itself it might be conclusive, but there are additional facts in this case. There is first the fact that the bill of lading was indorsed to the consignor's agent, SECT. II.] OGG V. SHUTER. 523 which is strongly in tlie defendant's favor. But then there are the other circumstances whicli appear to me of still greater weight in the plain- tifTs' favor, viz. that the delivery was to be free on board, that there was a part payment, and that the sacks in which the potatoes were shipped were the plaintiffs'. All these are extremely strong facts pointing to the conclusion that the property passed, and one of these was considered so very strong in the case of Browne v. Hare, 3 H. & N. 484 ; 4 H. & N. 822 ; 27 L. J. (Ex.) 372 ; 29 L. J. (Ex.) 6, as to make that almost a decision in point to the present ease. It is true that the cases run very fine, but they none of them, I think, depart from the proposition that the question is one of intention for the jury, when there are circumstances pointing both ways. The case of Browne v. Hare is very plainly to that effect. In that case the oil, which was the subject of the contract, was to be shipped " free on board," and was to be paid for by bill of exchange on delivery to the defendants of the bill of lading. It was so shipped free on board, and the bill of lading taken deliverable to shippers' order. So far the case was very similar to the present, but the bill of lading was there indorsed to the purchasers, whereas here it was indorsed to the ven- dor's agent. It was held that the property passed to the purchasers when the goods were placed " free on board" in performance of the contract, and that it was a question for the jury whether the plaintiffs so shipped the oil in performance of their contract to place it free on board, or for the purpose of retaining a control over it and continuing to be owners contrary to the contract. The expression " free on board" appeai-s to have been the main point relied upon in that case. Here, not only were the potatoes to be delivered " free on board," but there was part payment and delivery into plaintiffs' sacks, which alone would be the strongest evidence, according to one class of decisions, that the property passed. The terms " cash against bill of lading" may very well be satisfied by construing them as meant to preserve the vendor's lien, and so as not at all inconsistent with the other facts pointing to an intention that the property should pass.^ This decision was appealed from : Jlilivard, Q. C, and Willis, for the defendant. Prentice, Q. C, and Hall, for the plaintiff. The judgment of the court (Lord Cairns, C. ; Kelly, C.B. ; Bram- well, B. ; and Blackburn, J.) was delivered by Lord Cairns, C. In this case it appears, from the judgments be- low, that the Court of Common Pleas drew the inference of fact that the plaintiffs were not in default in refusing to accept the draft for £34 which was tendered to tliom for acceptance along with the bill of lading. We have been unable to reconcile this finding with the state- ments in the case, more particularly with the statement in paragraph 13, ■^ which seems to us to show that the plaintiflTs were in default. 1 Denman and Keating, JJ., delivered concurring opinions. 2 This related ♦^^o the refusal to accept the draft ou January 30. 524 MIRABITA V. IMPEKIAL OTTOMAN BANK. [CIIAP. IV, Taking tliis fact, as -we understand it, we think that the judgment in favor of the plaintiffs is erroneous, and should be reversed. The transactions in which merchants shipping goods on the orders of others protect themselves by taking a bill of lading, making the goods deliverable to the shipper's order, involve property of immense value, and we are unwilling to decide more than is required by the particular case. But we think this much is clear, that where the shipper takes and keeps in his own or his agent's hands a bill of lading in this form to protect himself, this is effectual so far as to preserve to him a hold over the goods until the bill of lading is handed over on the conditions being fulfilled, or at least until the consignee is ready and willing and offers to fulfil these conditions, and demands the bill of lading. And we think that such a hold retained under the bill of lading is not merely a right to retain possession till those conditions are fulfilled, but involves in it a power to dispose of the goods on the vendee's de- fault, so long at least as the vendee continues in default. It is not necessary in this case to consider what would be the effect of an offer by the plaintiffs to accept the draft and pay the money before the sale, for no such offer in this case was ever made. Judgment reversed. MIRABITA V. THE IMPERIAL OTTOMAN BANK. In the Court of Appeal, February 18, 1878. [Reported in 3 Exchequer Division, 164.] Appeal from the judgment of the Exchequer Division, in favor of the plaintiff on a special case stated by an arbitrator. The plaintiff is a merchant carrying on business at Malta and Con- stantinople. The defendants are a banking company incorporated by a firman of the Sultan, and carrying on business at Constantinople with agencies at London and Larnaca. On the 26th of June, 1873, a contract was made between the plain- tiff and Phatsea & Pappa, a firm at Larnaca, for certain umber to be sold to and shipped for the plaintiflT bv Phatsea & Pappa at Larnaca. On the 7thof Jul}', 1873, the plaintiff wrote to Phatsea & Pappa stat- ing that he would send ships on receiving advice of the quantity of umber ready for shipment, and also that the bills of lading must state that Phatsea & Pappa shipped the umber " b}' order and on account of the plaintiff." On the 26th of August, 1873, Phatsea & Pappa had 600 tons of umber ready for delivery and shipment under the contract, and they chartered bj' order of the plaintiff and for his account a British ship, the " Princess of Wales," then lying at Alexandria, to carry a cargo of Buch umber from Larnaca to London. The plaintiff approved of the char- SECT. II.] MIRABITA V. IMPERIAL OTTOMAN BANK. 52c ter-part}'. The "Princess of IVales" proceeded to Larnaca, where she took on board a cargo of 600 tons of umber. About the 9th of Octo- ber the plaintiff seni £150 to Phatsea & Pappa for ship's advances, of which sum £70 was paid to the master. On the 9th of October the master signed four bills of lading for the cargo, which stated the goods to be shipped by Phatsea &, Pappa, and to be delivered " to order or assigns." The bills of lading were given to Phatsea & Pappa. On the 10th of October the " Princess of Wales " sailed from Larnaca, and on the 14th of October Phatsea & Pappa informed the plaintiff' by telegram that the vessel had left with 600 tons on the 10th instant ; that they would shortly receive bills of lading and draft at sixty days, and requesting them to insure the cargo. The plaintiff communicated with his son, F. Mirabita, trading in London as Mirabita Brothers, and througli him eff'ected an insurance on the cargo. Phatsea & Pappa drew a bill of exchange for 280 Turkish liras on the plaintiff, and indorsed and handed it with the bills of lading to Corkji, from whom they had bought the umber which formed the cargo. Phatsea & Pappa had paid Corkji for the umber, and they handed him the bill of exchange by way of accommodation, to enable him to obtain an advance from the defendants and in anticipation of future supplies of umber. Corkji discounted the bill of exchange at the Larnaca agency of the defendants' bank, and with the "bill of exchange handed them the liills of lading, saying that they were to be sent to Constantinople, and given up to the plaintiff on paynaent by him of the bill of exchange at maturit}'. The Larnaca agency forwarded the bill of exchange and bills of lad- ing to their bank at Constantinople, Pappa having come to Constan- tinople and handed to the plaintiff the charter-party and invoice of the cargo, which stated that the same was " shipped by order and on account of the plaintiff." The defendants' bank at Constantinople pre- sented the bill of exchange to the plaintiff for acceptance, but he declined to accept without receiving the bills of lading. The bill of exchange and the bills of lading were then returned to the Larnaca agenc}'. The plaintiff afterwards offered to the defendants' bank at Constantinople to pay the bill of exchange before maturity on receipt of the bills of lading, but in consequence of the documents having been returned to Larnaca this offer could not be accci)ted. It was then arranged between the plaintiff and Pappa that a new bill of exchange for £254 lis. should be drawn by Phatsea & Pappa to the order of Corkji on Mirabita Brothers in London at two months' date, which should be substituted for the former bill for 280 Turki-sh liras, and notice of the agreement was given to the defendants' bank at Constantino})le. A new bill of exchange, dated the 9th of October, 1873, was, in accordance with the terms so agreed, drawn by Phatsea & Pappa and 526 MIRABITA V. IMI'ERIAL OTTOMAN BANK. [CHAP. IV. sent b>' them to Corkji, who handed it to the Larnaca agency, saying that it was to l)e sent with tlie bills of hiding to London, where Mirabita Brothers would be ready to accept and pa}' the bill of exchange at maturity against delivery of bills of lading. The Larnaca agency ac- cordingly gave up the first bill of exchange, and on the 20th of Novem- ber, 1873, forwarded the bill for £254 lis. to their agency in London, and directed them " to give up the bills of lading on payment of the inclosed bill of exchange." At the time of making the agreement with the plaintiff for the draw- ing of the bill of exchange for £254 Us., as already mentioned, it was doubtful whether the bills of lading would reach England before the arrival of the ship. Pappa thereupon gave the plaintiff a letter, addressed to the master of the " Princess of Wales," to be used in case the ship should arrive in England before the bills of lading, which letter pur- ported to authorize the master, if the bills of lading had not come to hand, to deliver the cargo to the plaintiff. On the 3rd of December the " Princess of Wales " reached Gravesend, and was ordered to the Millwall Docks by F. Mirabita. On the same day the bill of exchange for £254 lis., together with the bills of lading, was delivered by post, and in the course of the day was left at the office of Mirabita Brothers, with the following note at- tached : " Bill of lading for Terra umber, weighing 600 tons, per ' Prin- cess of AVales,' to be given up against the payment of attached draft, £254 lis., on Mirabita Brothers." F. Mirabita returned the ])ill of exchange to the defendants' London agenc}', stating that he was ready to pay the bill at maturit}-, but he did not then accept it. On the 8th of December the defendants' London agency gave orders to the ship's brokers to enter cargo in the name of the bank, and on the 12th the cargo was entered at the Custom House in the defendants' name ; but the defendants took no other steps towards taking possession of the cargo till after the 20th of December. On the 12th of December F. Mirabita called on the defendants, and offered to pay the bill and receive the bills of lading. The defendants' manager refused to accept pa^-ment, alleging that they had taken pos- session of the cargo and thereby had made themselves liable for freight. They had done nothing to take possession of the cargo or to make them liable for freight. On the 18th of December F. Mirabita again offered to pay the bill of exchange and to give a guarantee for the freight. After some fur- ther negotiation the defendants landed the cargo, and after heavy ciiarges for demurrage, landing, and other expenses had been incurred, sold the cargo in bulk, without any authority from the plaintiff or F. Mirabita, for a sum which was not sufficient to pay the amount of the bill of exchange, freight, and expenses ; the cargo was worth more than the amount of the bill of exchange, freight, and expenses, and if the plaintiff had obtained possession of it he would have made a profit therefrom. SECT. II.] MIRABITA V. IMPERIAL OTTOMAN BANK. 527 So far as it was a question for the jur}', the arbitrator found as a fact that it was the intention of Phatsea & Pappa and of the plaintiff that the property in the cargo of umber should pass to the plaintiff upon its shipment on board the " Princess of Wales," subject to a lien on the same for payment of the price ; and their intention that the property in the cargo should be vested in the plaintiff continued from the time of shipment until the arrival of the ship in England. The court is to be at liberty to draw inferences of fact, and to dis- regard the above finding, if a juiy would not have been justified in com- ing to such a conclusion from the facts above stated. The question was whether the plaintiff is entitled to recover damages from the defendants for their dealing with the cargo as above mentioned. Matthews, Q. C, and Arthur Wilson, for the defendants. M. White,(^. C, and Archibald, for the plaintiff. Cur. adv. vult. The following judgments were delivered : — Bkamwell, L. J. This case has been argued on the footing that the law of England or a like law is applicable, and we must so deal with it. We must treat as the governing bargain between the plaintiff and Phatsea & Co., the one made at the time it was arranged that the payment should be made by a bill at two months, and that the vendees should not be entitled to the GOO tons of umber, or bills of lading of them, until payment of the bill of exchange. No question arises as to the defendants' rights ; for it was admitted, and properly admitted, that the defendants did wrong in refusing the amount of the bill, and selling the umber. On the other hand, there is no contract between the plaintiff and the defendants. So that in the result the case is reduced to this : When the defendants tortiously disposed of the umber, had the plaintiff such a propert}' therein, or right thereto, as to entitle him to maintain this action? It is argued that he had not, and the reason given is, that as the umber was not specific and as- certained, and as on shipment the shippers took a bill of lading to order, and gave an interest in it to Corkji, who transferred it to the defendants, no i)roport3- passed ; and for this a long series of author- ities, beginning with Wait i;. ]5aker, 2 Ex. 1, and ending with Ogg y. Shuter, 1 C. P. D. 47, is cited. It is almost superfluous to say that by these authorities I am bound, that I pay them unlimited respect, and I ma}' add I do so the more readily as I think the rule they estal)lish is a bene- ficial one. But wiiat is that rule? It is somewhat various!}- expressed as Ijeing either that the property remains in the shi[)per, or that he has a jus disponendi. Undoubtedly he has a property or power which enables him to confer a title on a pledgee or vendee, though in breach of his contract with the vendor. This appears from Wait v. Baker ; Gabarron v. Kreeft, Law Kep. 10 Ex. 274 ; and to some extent from Ellershaw /;. Magniac, 6 Ex. 570. In the first case, Parke, B., ex- pressly says that the vendee Baker could under the circumstances maintain an action against Lethbridge for having sold the barley to 528 MIRABITA V. IMPERIAL OTTOMAN BANK. [CIIAP. IV. Wait. This propert}- or power exists then ; and therefore if the ri) vendors of the inubcr hud sold it to the defendiints this action would i not be maintainable. But in that case the defendants would have acquired a right, while, as I have said, it is admitted that no right in them can be relied on. I think it is not necessary to inquire whether what the shipper possesses is a propei'ty, strictly so called, in the goods, or a jus dlsponendi, because I think, wliichever it is, the result must be the same, for the following reasons. That the vendee has an interest in the specific goods as soon as they are shipped is plain. By the con- tract they are at his risk. If lost or damaged, he must bear the loss. If specially good, and above the average quality which the seller was bound to deliver, the benefit is the vendee's. If he pays the price, and the vendor receives it, not having transferred the propert}', nor created anj- right over it in another, the property vests. It is found in this case that as far as intention went the propert}' was to be in the plaintiff on shipment. If the plaintiff had paid, and the defendants had accepted the amount of the bill of exchange, it cannot be doubted that the prop- ert}' would have vested in the plaintiff. Why? Not b}- any delivery. None miglit have been made ; the defendants might have wrongfully- withheld the bills of lading. The property would have vested b}' virtue of the original contract of sale. It follows that it vested on tender of 1 the price, and that whether the vendor's right was a right of propert}' or a jus disponendi ; for whichever it was it was their intention that it should cease on the plaintiff's paying the price, and therefore it would cease unless meanwhile some title had been conferred on a third per- son to something more than the price. This, though wrongful as regards the plaintiff, would have been valid. But no such title exists here. There is nothing in the authorities inconsistent with this. The only case that may be thought to seem so is Wait v. Baker, supra, where, though the vendee tendered the price, he was held to have acquired no property. But it is manifest that in that case the vendor originally took the bill of lading to order, and kept it in his possession, to deal with as he thought fit, and never intended that the property should pass until he handed the bill of lading to the vendee on such terms as he chose to exact. Parke, B., says: " There is no pretence for saying that Lethbridge agreed that the property should pass." "There was nothing that amounted to an appropriation, in the sense of that term, which alone would pass the property." " There was no agreement between the two parties that that specific cargo should become the property of the defendant," the vendee. Here all the evi- dence shows that there was such an agreement. The arbitrator says it existed in fact at the time of shipment, but the subsequent conduct of both parties shows it. What seems decisive is this : the plaintiff must have a right against some one ; has he any against Pliatsea ? Now Phatsea has done nothing that he had no right to do, and ho has done everything he was bound to do, treating the altered agreement as gov- erning. No action therefore would lie against him. It must then be SECT. II.] MIRABITA V. IMPERIAL OTTOMAN BANK. 529 the defendants who are in the wrong. I think they are, that the prop- erty was to pass on payment, and consequently on tender of payment, of \he Lill of exchange ; that the bill of lading was handed to the Larnaca Bank to be delivered to the plaintiif on payment of the bill of exchange ; that therefore the plaintiff can maintain this action, and the judgment should be affirmed. I would add that I agree with the rea- soning of my brother Cleasby in the court below ; and I would further remark that I believe this is a question which would not have been open to the slightest doubt if the action had been brought after the coming into operation of the Judicature Acts. Cotton, L. J., has favored me with a perusal of his judgment, and I entirely agree with it. Cotton, L. J. In this case the vendors on shipping the goods, the subject of the contract, took a bill of lading requiring the delivery of the goods to be to their order, and dealt with that bill of lading in this w^ay in order to secure payment of the bill of exchange which they then drew on the plaintiff. The bill of exchange was discounted with the defendants, and the bill of lading was transferred to them as security for the payment of the bill of exchange ; this bill of exchange having been refused acceptance, a second bill of exchange was drawn and given in lieu of the first bill, upon the terms of the delivery of the bill of lading to the plaintiff upon payment of the second bill of exchange, and in so dealing with the bill of exchange the vendors intended that upon payment the plaintiff, the purchaser, should obtain the goods, and they agreed, and, as far as they could, transferred to the purchaser their right to insist that on payment of the bill of exchange the bill of lading should be handed over. I mention those facts for the purpose of adding this : that the action was instituted before the passing of the Judicature Acts, and therefore it is simply to be dealt with as a legal question ; and we cannot inquire here how far the plaintiff has the right in equity to insist that he occupies the same position as the vendors, and to insist that as against the pledgee of the bill of lading the plaintiff, as transferee of the right, has a good equitable title, even if he has not a legal title. In fact in the present case it simply turns on this question, whether the property in the goods in question has, under the circumstances, passed to the plaintiff. Now I quite agree with the judgment of Bramwell, L. J., but as several cases were cited in the argument which it was contended were adverse to the ground of our decision, I think it better to state what I consider to be the principle of those decisions, and to point out how far that principle is applicable to such cases as this : Under a contract for sale of chattels not specific the property docs not pass to the pur- chaser unless there is afterwards an appropriation of the specific chat- tels to pass under the contract, that is, unless both parties agree as to the specific chattels in which the property is to pass, and nothing re- mains to be done in order to pass it. In the case of such a contract 530 MIRABITA V. IMPERIAL OTTOMAN BANK. [CHAP. IV. tlie (lellveiy by the vendor to a common carrier, or (unless the effect of the shipment is restricted bj- the terras of the bill of lading) ship- ment on board a ship of, or chartered for, the purchaser, is an appro- priation siillicicnt to pass the property. If, however, the vendor, when shipping the articles w4iich he intends to deliver under the contract, takes the bill of lading to his own order, and does so not as agent or on behalf of the purchaser, but on his own behalf, it is held that he thereb}' reserves to himself a power of disposing of the property, and that consequently there is no final appropriation, and the property does not on shipment pass to the purchasers. When the vendor on ship- ment takes the bill of lading to his own order, he has the power of absolutely disposing of the cargo, and may prevent the purchaser from ever asserting any right of propert}' therein ; and accordingly in Wait V. Baker, siqjra, EUershaw v. Magniac, supra, and Gabarron v. Kreeft, siqjra (in each of which cases the vendors had dealt with the bills of lading for their own benefit) , the decisions were that the pur- chaser had no propertj- in the goods, though he had offered to accept bills for or had paid the price. So, if the vendor deals with or claims to retain the bill of lading in order to secure the contract price, as when be sends forward the bill of lading with a bill of exchange attached, with directions that the bill of lading is not to be delivered to the pur- chaser till acceptance or payment of the bill of exchange, the appro- priation is not absolute, but, until acceptance of the draft, or pa3'ment, or tender of the price, is conditional only, and until such acceptance, or payment, or tender, the property in the goods does not pass to the pur- chaser ; and so it was decided in Turner v. Trustees of Liverpool Docks, 6 Ex. 543 ; 20 L, J. (Ex.) 393 ; Shepherd v. Harrison, Law Rep. 4 Q. B. 196 ; Ogg v. Shuter, siqjra. But if the bill of lading has been dealt with only to secure the contract price, there is neither principle nor authoritj- for holding that in such a case the goods sliipped for the purpose of completing the contract do not on payment or tender b\- the purchaser of the contract price vest in him. When this occurs there is a performance of the condition subject to which the appropriation was made, and everything which, according to the inten- tion of the parties, is necessary to transfer the proper!}- is done ; and in my opinion, under such circumstances, the property- does on pa3-ment or tender of the price pass to the purchaser. Apply these principles to the present case. Pappa did not attempt to make use of the power of disposition which he had under the bill of lading for tlie purpose of entire!}- withdrawing the cargo from the con- tract. He dealt with it only for the purpose of securing payment of the price. It is expressl}' stated in the special case that Mr. Corkji, who acted for Pappa, discounted the said bill of exchange at the agency of the defendants' bank, and with the bill of exchange handed them the bills of lading, saying that they were to be sent to Con- stantinople and given up to the plaintiff on payment of the bill of exchange at maturity. SECT. II.] THOMPSON AND PETTY V. CONOVER. 531 Under these circumstances there was an appropriation by the vendors of the cargo subject only to payment of the price. This was tendered, and as it is conceded that the defendants were wrong in claiming any- thing more, the plaintiff, the purchaser, had done or offered to do ail that was incumbent on him to make the appropriation absolute, and the prop- erty vested in him. Brett, L. J., concurred that the judgment of the Exchequer Division must be affirmed. Judgment affirmed. JOSEPH J. THO^IPSON AXD JOHN PETTY v. JOHN V. CONOVER New Jersey Court of Errors axd Appeals, June Term, 1865. [Reported in 32 New Jersey Law, 466.] Greex, C. Conover, the plaintiff below, in March, 1861, sold to Cornelius Petty his crop of corn, consisting of about six hundred bushels — the white corn at sixty-five cents a bushel, and the yellow at sixty-three cents. At the time of the sale the corn was unshelled. It w'as to be shelled by the vendor, to be delivered by him at the mill of the vendee, and to be paid for when it was all delivered. On the fifteenth of March, the vendor delivered two hundred and seventy- two bushels of white corn, which was charged in his book at that date. On the same day, a judgment by confession was entered, and an execution issued against Cornelius Petty, the vendee, by virtue of which, on the sixteenth of March, the sheriff levied upon the pro- perty of the vendee, including the corn delivered by Conover the day before, and closed the mill. On the eighteenth of March, the balance of the corn was shelled and ready for delivery. Conover sent sixty- eight bushels to the mill, which the vendee declined to accept, saying he did not take any more corn, and told the teamsters to go home with it. On the twenty-eighth of March, the corn in the mill Avas sold by the sheriff, by virtue of his levy. The vendor thereupon re- scinded the contract for the sale of the corn, and brought an action of trover and conversion against the sheriff and the plaintiff in execu- tion, for the corn delivered on the fifteenth of March. To maintain his action, the plaintiff must show that the corn, which was delivered on the fifteenth of March, still remained the property of the vendor, and was, consequently, not subject to the levy of the execution. Was it his property, or had the title passed to the vendee ? The decision of this question involves two inquiries : 1. Was the contract an entirety ? 2. If it was, and the vendor had a right to rescind, did the rescind- 532 THOMPSON AND PETTY V. CONOVER. [CHAP. IV. ing of the contract leave the title to the property which had been de- livered, in the vendor ? The contract partakes of the character both of an entire and of a severable contract. For although the subject of the contract consists of several entire things, to which certain values are affixed, so that the several value of each may be ascertained, yet the terms of the contract indicate that neither party contemplated the vendee's taking part without taking the whole of the articles contracted for. The prices of the two kinds of corn were fixed, so that the value of the corn delivered could be readily ascertained. Yet the contract was for the sale of the whole crop. And although the charging of the corn delivered by Conover in his book of account, on the day of its delivery, and before the delivery of the entire crop, may tend to throw some doubts upon this view of the contract, yet the contract must be regarded upon the evidence as an entirjety, which the vendor had a right to rescind, upon the failure of the vendee to receive the entire crop. So the vendor had a right, upon the failure or disability of the vendee, by reason of the levy, to pay for the corn on delivery of the entire crop, to rescind the contract and to refuse to deliver the bal- ance of the corn, whether the vendee was willing to accept it or not. But the question still remains, had the vendor a right, upon the re- scinding of the contract, to recover back the corn which had been delivered to the vendee, and been levied upon by the sheriff. I understand the law to be well settled, that when the vendor has performed everything that is required of him as to a portion of the things sold, but something still remains to be done as to the rest, the portion in regard to which the vendor has performed all his duty, be- comes the property of the vendee, but the portion in respect to which something is yet to be done, still belongs to the vendor, and it makes no difference as to the operation of this rule, whether the contract is an entirety or not. Story on Sales, 299, and cases cited in note 1. The corn which was shelled and delivered by the vendor at the mill of the vendee, on the fifteenth of March, passed to the vendee at that time. If it had been destroyed by fire, it would have been his loss, not the loss of the vendor. There was no express stipulation in the contract, that the title should not pass till the whole crop Avas deliv- ered and paid for. It was the ordinary case of a sale and delivery of goods, to be paid for when all was delivered or on short credit. If the vendor had intended that the property should not pass until the purchase money was paid, he should so have stipulated. But the corn having been delivered without any condition of this character, a bona fide purchaser or execution creditor of the vendee may hold the property against the claim of the vendor. The vendor might have delivered all his crop on the same day, and demanded im- mediate payment, and upon its being refused, might have reclaimed the corn. This would have brought the case directly within the doc- trine of Palmer v. Hand, 13 Johns. R. 434. SECT. II.] BAILEY V. HERVEY. 533 But the vendor chose to give credit for the purchase money till the entire crop was delivered, relying on the solvency and good faith of the vendee. He suffered the title to pass without the payment of the price, and has thus become a sufferer. I am of opinion that the plaintiff had no property in the goods, at the time of the levy or sale under the execution, which will enable him to maintain an action against the plaintiff in execution for the recovery of the goods. The judgment must be reversed.^ JAMES W. BAILEY v. WILLIAM H. HERVEY & another. Supreme Judicial Court of Massachusetts, January 11-June 19, 1883. [Rejiorted in 135 Massachusetts, 172.] Tort for conversion. The defendants delivered goods to the plaintiff under a written agree- ment, which recited that the plaintiff had "hired and received" the goods from the defendants, for which the plaintiff agreed to pay the de- fendants certain sums of money as " rent " at stated times, and " the balance," at a certain rate per month, '•' until paid ; " that, upon default in making such payments, the plaintiff's right to retain the goods should cease ; and that title to the goods should vest in the plaintiff only upon performance of all the conditions of the agreement. The plaintiff made sundry payments on account of said contract, amount- ing in the whole to $128. After failure by the plaintiff to make pay- ments according to the agreement, the defendants brought an action against him for rent, attached his property by trustee process, and entered the action in court, and the plaintiff was defaulted. The de- fendants then took possession of the goods, and afterwards prose- cuted his action against the plaintiff to judgment, for $100.71 and costs, and took out an execution, upon which he collected a small sum of money from the trustee. If, upon these facts, the plaintiff was entitled to maintain his action, judgment was to be entered for him in the sum of $100 and costs ; otherwise, judgment for the defendants.^ J. Cutler, for the jjlaintiff. (T. B. Richardson, for the defendants. 1 Holland's Assignee v. Cincinnati Co., 97 Ky. 454, ace. See also, Ncal v. Bopgan, 97 Ala. Oil; Powers. Wells, Cowp. 818; Emanuel v. Dane, 3 Camp. 299; Indian Cont. Act. sec. 121. 2 The statement of facts has been abbreviated. 534 BAILEY V. HERVEY. [CHAP. IV. " C. Ali.en, J. By the terms of the written agreement, the plaintiff was bound at all events to pay to the defendants the full amount at which the goods were valued, and upon such payment the title was to vest in him. This payment, therefore, constitutes the agreed price of the goods, and it is a misnomer to call it rent. The defendants would have no right to exact payment in full of the money, and also to reclaim the goods. When the plaintiff discontinued his payments on account, what was the legal position of the defendants ? If it be assumed that they might, at their option, either reclaim the goods as their own property, without any obligation to account for their pro- ceeds or value to the plaintiff, or that they might collect the price in full, it is plain that they were not entitled to do both. They could not treat the transaction as a valid sale and an invalid one at the same time. If they reclaimed their property, it must be on the ground that they elected to treat the transaction as no sale. If they brought an action for the price, they would thereby affirm it as a sale. Two in- I consistent courses being open to them, they must elect which they would pursue ; and, electing one, they are debarred from the other. Eeclaiming the goods would show an election to forego the right to recover the price. But, instead of reclaiming the goods in the first instance, they brought an action against Bailey for the price, made an attachment of his property by trustee process, entered their action in court, and he was defaulted. They were thereupon entitled to judg- ment against him. Under this state of things, the action was con- tinued to a later term of court, and after the lapse of several months, and after the commencement of the second subsequent term of court, the defendants, without discontinuing their action, or giving any notice to Bailey of an intention to abandon that remedy, took posses- sion of the goods ; and, after this had been done, they proceeded in their action to judgment, and took out execution, upon which they collected a small sum from the trustee. They had thus made a deci- sive election to treat the transaction as a sale, before reclaiming the goods ; and, under such an election, the title passed to Bailey. Butler V. Hildreth, 5 ]\Iet. 49 ; Arnold v. Richmond Iron "Works, 1 Gray, 434, 440; Heryford v. Davis, 102 U. S. 235, 240. For these reasons, a majority of the court is of opinion that there must be Juilgment for the plaintiff} 1 Parke Co. r. White River Co., 101 Cal. 37; Holt Mfg. Co. v. Ewing, 109 Cal. 353; Hine V. Roberts, 48 Conn. 267; Crompton v. Beach, 62 Conn. 25; Campbell Press ("o. v. Henkle, 8 Mackey, 95; Smith v. Gilmore, 7 D. C. App. 192; Richards r. Schreiber, 98 la. 422; But- ton «. Trader, 75 jMich. 295; Alden v. Dyer, 92 Minn. 134; Dowagiac Mfg. Co. v. Mahon, 101 N. W. Rep. 903, 905 (N. Dak.), ac.c'. See also Smith v. Barber, 153 Ind. 322. Jones V. Snider, 99 Ga. 276; Dederick v. AVolfe, 68 Miss. 500; McPherson v. Acme Lum- ber Co., 70 Miss. 640; Campbell Press Co. ?,•. Rockaway Pub. Co., .56 N. J. L. 676, contra. See also Thomason v. Lewi.s, 103 Ala. 42G; Fuller v. Byrne, 102 Mich. 461; Matthews v. Lucia, 55 Vt. -308. Suing for the price and attaching or levying upon property sold under a conditional sale has been held to bar the seller from asserting title to the property'. Tanner Engine BECT. II.] DUKE V. SHACKLEFOED. 635 ELLA AIs^D NELLIE DUKE v. W. C. SHACKLEFORD. Mississippi Supreme Court, January, 1879. [Eeported in 56 Mississipin, 552.] 0^ December 7, 1876, W. C. Shackleford sold to Mary C. Delia- liite an engine, boiler, saw, and gearing, for $725, of which $500 was paid cash, and for the balance the following note given : — "225. On or before the 1st day of January, 1878, I promise to pay W. C. Shackleford, or bearer, two hundred and twenty-five dollars, bearing 10 per cent interest after maturity ; being balance due on engine, boiler, cut-off saw, and gearing sold me this day by the said W. C. Shackleford ; title to said machinery being retained by the said Shackleford until the amount is paid in full. "It is expressly understood that said machinery is to be moved and put up near Garner's Station, on the M. & T. R. R. Mary C. Dellahite. " CoFFEEviLLE, Miss., Dccr. 7, 1876." The machinery was put up at Garner's Station. The note was not paid at maturity ; and Shackleford, without tendering the $500, brought replevin for the property. The land on which the saw-mill stood was sold to the Dukes, before the suit was brought, who pur- chased with notice of Shackleford's rights, and so the suit was against them ; and they bring up the case from a judgment for the recovery of the machinery. J. J. Slack, for the plaintiffs in error. George H. Lester, for the defendant in error. Chalmers, J., delivered the opinion of the court.^ By the terms of the written contract, the title of the property re- Co. I'. Hall, 89 Ala. 628; Montgomery Iron Works v. Smith, 98 Ala. 644; Fuller v. Eames, 108 Ala. 464; Aihrifrht v. Meredith," 58 Ohio St. 104. If the seliiT under a conditional sale after breach bj' the buyer reclaim.s the property, it is generally held that the seller cannot thereafter sue for the price or any unsatisfied ]iortion of it. Lam'ond v. Uavall, 9 Q. B. 10.30; Dowdell v. Empire Furniture Co., 84 Ala. 310, 318; Aultman v. Fletcher, 110 Ala. 452; Hodgers v. Hachnian, 109 Cal. 552; Green v. Sinker, 135 Ind. 434; Perkins r. Grobben, 116 Mich. 172; ^McIJryan v. Universal Elevator Co., 130 Mich. Ill; Minnea(")lis Works r. Ilally, 27 Minn. 495; Aultman v. Olson, 43 Minn. 409 (race, 103 Wis. 341 ; Sawyer v. Pringlc, 18 Out. App. 218. But see Van Allen V. Francis, 123 Cal. 474; Tufts v. D'Arcambal, 85 Mich. 185, 190; Van Den Bosch r. Bouw- nian, 101 N. W. Kep. 832 (Mich.); Brewer v. Ford, 54 Ilun, 116. See also Mecheni on Sales, §621. 1 A portion of the opinion overruling a dictum in Ketchum t'. Brennan, 53 Miss. 596, is omitted. 536 DUKE V. SHACKLEFORD. [CHAP. IV. mained in the vendor until payment in full of the note given for the deferred payment. The effect of the contract, therefore, was to leave the right of property in the seller, and to give the right of possession, until default made in payment, to the purchaser. Coupled with this right of possession was also the right in the purchaser to obtain title by" payment of the price. But the period of payment having arrived, and default having been made, his right of possession terminated, and the vendor, who had all the while remained owner, became entitled to reclaim the custody of his property. In order to assert this right, it was only necessary for him to make demand for the restoration of the property or payment of the price ; and this he did. It was not neces- sary that he should pay back, or tender, the money received as the cash payment. This is only necessary in cases of disaffirmance and rescission of a sale on condition subsequent. But this was a sale on condition precedent; that is, there was to be no sale, properly so called, no change of title, until the full price should be paid; and the law annexes to such a sale a right in the seller to recover possession of his property upon default made, even against subsequent bona fide purchasers for value without notice. In reclaiming his property, therefore, the seller is not rescinding the contract, but is enforcing it ; and hence there is no obligation to tender back any thing. He is simply asserting his legal rights, in strict accordance with the ex- press stipulations of the contract. What rights, if any, the vendee in such a contract might have in a court of chancery is not before us. Ketchum & Cummings v. Brennan, 53 Miss. 597 ; Story on Sales (3d ed.), sect. 313 and note 2; Benj. on Sales (Perkins's ed.), sect. 320, and note ; Baker v. Hall, 15 Ind. 277 ; Dunbar v. Rawles, 18 Ind. 225 ; Sumner y. McFarlan, 15 Kan. 600; Zoutchman v. Roberts, 109 Mass. 53 ; Sage v. Sleutz, 23 Ohio, 1 ; Little v. Paige, 44 Mo. 412 ; Duncan v. Stone, 45 Yt. 118 ; Davis v. Emery, 11 N. H. 230 ; Bauendahl v. Horr, 7 Blatchf. 548 ; West v. Bolton, 4 Vt. 558. The cases specially cited are all cases where partial payments had been made. Affirmed.^ 1 As to the forfeiture of payments already made, see 32 L. R. A. 469; Dodge v. Carter, 140 Cal. 663; Griffin v. Ferris,' 76 Conn. 221; Herbert v. Rhodes-Burford Co., 106 111. App. 583. See also analogous cases in regard to real estate, I. Ames Eq. Jur. 339 n., 341 n. SECT. II.] BRIDGFORD V. CROCKER. 637 JAMES BEIDGFOED, Respondent, v. LEMUEL H. CEOCKER, SuRvivoB, ETC., Appellant. New York Court of Appeals, February 15-2.3, 1875. [Reported in 60 New I'orit, 627.] This was an action, among other things, upon a check drawn by defendants' firm, and transferred to plaintiff by the payee, upon a contract for the sale, by the former, to Gavin & Kelly, of 500 head of cattle. The check was given to Gavin to purchase cattle for de- fendants. The trial court held, that, under the circumstances, plain- tiff could not recover, unless, upon proof, that defendants assented to the use made of the check ; and submitted this question to the jury. The court here held, that the evidence was sufficient to warrant such submission. Gavin & Kelly received all of the cattle, except 126 head ; they paid plaintiff, including the check, more than sufficient to pay for the cattle delivered. Plaintiff claimed damages for the refusal to receive the residue, and the court held they were entitled, as damages, to the difference between the market-value, at the time Gavin was to receive them, and the contract-price. It appeared that plaintiff, after hold- ing them until spring, sold them at an enhanced price. Defendants claimed the benefit of the sale. Held, that the ruling of the court was correct ; that plaintiff had the election either to tender the cattle and recover the contract-price, or to keep the cattle as his own, and recover his damages, to be determined in accordance with the rulings of the court (Dustan v. Andrews, 10 Bosw. 130, questioned) ; and that it mattered not, and could not be taken into consideration what plain- tiff received upon a subsequent sale of the cattle ; if the cattle rose in the market, after the failure to perform, the plaintiff, not the defend- ants, was entitled to the benefit of the enhanced value. JE. C. Sprague for the appellant. George Wadsivorth for the respondent. Grover, J., reads for affirmance. All concur. Judgment affirmed} 1 Warren r. Buckminster, 2-t N. H. 336._ See also Strickland v. McCulIoch, 8 N. S. Wales, 324. 538 ACKERMAN V. RUBENS. [CHAP. IV. J. FEEDEEICK ACKEEMAN, Appellant, v. E. FULTON EUBENS, Eespondent. New York Court of Appeals, May 2-June 11, 1901. [Reported in 167 New York, 405.] On the 28th of July, 1897, at the city of New York, the plaintiff sold his yacht lola to the defendant for the sum of $2,250, by an executory contract which impliedly provided that the title should not pass until the purchase price should have been fully paid. The de- fendant refused to complete his purchase, whereupon the plaintiff gave him written notice that he should sell the yacht " either by pub- lic sale at auction, or private negotiation, whichever in my judgment will result in obtaining the most favorable price, and in the event of any deficiency in the sum so obtained and the contract price as agreed upon as per contract of July 28, 1897, namely, $2,250, I shall hold you for such deficiency." The defendant paid no attention to this notice and had no further communication with the plaintiff at any time on the subject of selling the yacht. The plaintiff promptly placed the vessel in the hands of an expe- rienced yachtsman for sale, but after due effort no sale could be made, although she was advertised in a prominent New York daily news- paper every Sunday during the months of August and September. Thereupon the plaintiff placed her in the hands of a public auctioneer for sale at auction, and on the 29th of September gave the defendant personal notice in writing that she would be sold at auction on the 6th of October, 1897, at one o'clock p. m., at the store of the auctioneer, No. 29 Burling Slip, in the city of New York. In the advertisement of the auctioneer she was fully and accurately described, and notice was given that she could be " seen at Atlantic Yacht Club Basin, foot of 55th street, Brooklyn." At the time and place named she was sold at auction in the usual way to an agent of the plaintiff for $1,100, which was the highest, but not the only, bid, as a stranger had run her up to $1,050. The expenses of the sale were $90, of which $40 was for advertising, hand bills and postage, and $50 was for the ser- vices of the auctioneer. The plaintiff credited the net proceeds of the sale upon th^ purchase price and sued the defendant for the bal- ance, amounting to $1,240. . . . The tri%l court, upon motion of the defendant, directed a verdict for the plaintiff for nominal damages only, and an exception was duly taken. The jury rendered a verdict for six cents, and the judgment entered accordingly having been affirmed by the Appellate Division, the plaintiff came here. SECT. II.] ACKEKMAN V. EUBENS. 639 Charles D. Ridgway for appellant. Percival S. Jones and Henry J. McCormick for respondent. Vann", J. When the vendee of personal property, under an execu- tory contract of sale, refuses to complete his purchase, the vendor may keep the article for him and sue for the entire purchase price ; or he may keep the property as his own and sue for the difference between the market value and the contract price ; or he may sell the property for the highest sum he can get, and after crediting the net amount received, sue for the balance of the purchase money. (Moore v. Potter, 155 N. Y. 481 ; Dustan v. McAndrew, 44 N. Y. 72.) ^ While the courts below recognized this rule they did not apply it, for they held that the sale at auction was no sale at all, because a man cannot sell to himself. This would be true of an attempt to" make a private sale to one's self, but it is not true of a sale at public auction, fairly conducted by a licensed auctioneer, and made at a reasonable time and place, after adequate opportunity to see the property, due advertisement to the public and personal notice to the vendee, when the real purpose is to ascertain the value of the property. The law is satisfied with a fair sale, made in good faith, according to estab- lished business methods, with no attempt to take advantage of the vendee. Such, as the jury might have found, was the sale under con- sideration. The primary object of the sale was not to pass title from the vendor, but to lessen the loss of the vendee. The subject of the sale had no market value, and the amount for which it could be sold depended largely upon taste and fancy. A public competitive sale by outcry to the highest bidder, duly advertised and made upon notice to the vendee, is a safer method of measuring the damages than a sale by private negotiation, which has been held sufficient. (Van Brocklen V. Sineallie, 140 IST. Y. 70.) A fair public sale, in the absence of other evidence, is competent evidence of value. The plaintiff did not con- duct the sale himself, but placed the yacht in the hands of a public auctioneer for sale without reservation, on account of whom it might concern. While the auctioneer was his agent he could not lawfully control him so as to prevent an honest sale. The defendant had notice and an opportunity to protect himself, yet he asked for no postponement, made no request, gave no instructions and did not even appear at the sale. If the plaintiff's agent had refrained from bidding, the property would have gone to a stranger for a. less sum than it finally brought, and yet, in that event, even according to the defend- ant's theory, the sale would have been valid. The fact that the plain- 1 Habck^r v. Roarers, 131 Fed. Rep. 43, 45 (C. C. A.); Magnes v. Sioux City Seed Co., 14 Col. Ai)p. 219, 225; I5agley v. Findlay, 82 III. 524; Ames v. Moir, 130 III. 582, 591 ; Comstocic V. I'riee, 103 111. App. J9', 21; I?ell 'v. Offutt, 10 IJii.sli. f)3fl; Ozark Liimher Co. v. Chicago Luniher Co., 51 Mo. App. 555, 5'!1 ; Van Urocklen ?'. Smeallie, 140 N. Y. 70, 75; Levy t>. Glassberg, 92 X. Y. Supp. 50; Shawliaii v. Van Nest, 25 Ohio St. 400; IJallentine v. Robin- son, 40 I'a. 177; Pratt v. S. Freeman & Sons Mfp. Co., 115 Wis. 648, G54, ace. See also Putnam v. Glidden, 159 Mass, 47, 49; Gordon v. Norris, 49 N. H. 376. 540 ACKERMAN V. RUBENS. [CHAP. IV. tiff outbid all competitors did not render the sale invalid, for he had a right to bid, provided he took no advantage by trying to prevent others from bidding or by disregarding any reasonable request of the defendant, or in any other way. If he had acted as auctioneer, or in collusion with the auctioneer, or there was any evidence of furtive effort on his part, or anything to challenge the fairness of the sale, the action of the trial court in virtually withdrawing the case from the jury might have been justified, but the mere fact that he was the highest bidder at a public sale, the fairness of which is not questioned in any other respect, did not warrant the direction for nominal dam- ages only. The object of the sale was to measure the damages caused by the default of the defendant, and they were diminished instead of being increased by the action of the plaintiff. We forbear further discussion, because the question is no longer open in this court, as it was involved in a case recently decided by us upon careful consideration after full discussion by counsel. (Moore V. Potter, 155 N. Y. 481.) In that case, as in this, the property was sold at auction to a representative of the vendor, and the point was distinctly made on the argument before us that as the vendor was the real purchaser, " the sale was colorable only and absolutely without effect upon the rights of the parties." While we did not discuss the question in our opinion, it was necessarily involved, was passed upon in consultation and decided. Both upon principle and authority we think that the amount for which the yacht was struck off to the vendor at an auction sale fairly conducted, upon notice to the vendee, with no suspicion of fraud or undue advantage, was lawful evidence of the value of the yacht and presented a case for the consideration of the jury. The judgment should, therefore, be reversed and a new trial granted, with costs to abide the event.^ Haight, J. (dissenting). The rule of damages for a breach by the buyer of a contract for the sale of personal property is well settled. The seller may store the property for the buyer and sue for the pur- chase price ; or may sell the property as agent for the vendee and re- cover any deficiency resulting ; or may keep the property as his own and recover the difference between the contract price and the market value at the time and place of delivery. If he sells as agent he may sell either at public or private sale, but it must be a sale made in good faith and in such manner as to produce most nearly the full value of the property. Selling as agent he cannot sell to himself. Selling involves contracting and a person cannot contract with himself and bind others thereby. If he could sell to himself publicly he could privately, and thus be able to perpetrate a fraud or an injustice which might be difficult to detect or prove. (Van Brocklen v. Smeallie, 140 N. Y. 70, 75 ; Pollen v. Le Eoy, 30 N. Y. 549, 557 ; Dustan v. 1 Strickland v. McCulloch, 8 N. S. Wales, .324; conf. Straus v. La^sap, 59 Mo. App. 260. SECT. II.] PUTNAM V. GLIDDEN. 641 McAndrew, 44 N. Y. 78 ; Hayden v. Demets, 53 JS[. Y. 426 ; Bain v. Brown, 56 ^. Y. 285.) I think the judgment should be affirmed. Parker, Ch. J., Bartlett and Martin, J J., concur with Vann, J. ; Gray and Werner, JJ., concur with Haight, J. Judgment reversed, etc.i FRANK E. PUTNAM v. CHARLES J. GLIDDEN. Supreme Judicial Court of Massachusetts, January 13-May 16, 1893. [Reported in 159 Massachusettt, 47,] Contract to recover for the keeping, care, etc., of one pair of horses, from June 16, 1890, to October 17, 1891. The case was sub- mitted to the Superior Court, and, after judgment for the plaintiff, to this court, on appeal, on agreed facts, in. substance as follows. On June 16, 1890, the plaintiff, who was then the owner of the horses, had negotiations with the defendant in relation to a sale of them, by which they were delivered by the plaintiff at the defendant's stable in Lowell. The plaintiff contended that the negotiations so made, and the de- livery, amounted to an absolute sale. The defendant contended that the sale w^as subject to the approval of his veterinary surgeon, who was to examine the horses and report whether or not they were sound. On June 17 the defendant returned the horses to the plaintiff's stable, contending that his veterinary surgeon reported one of the horses to be unsound, and that he had a riglit to return them under the contract. The plaintiff on the next day delivered to the defend- ant the following notice in writing: " You are hereby notified that the pair of horses sold by me to you on Monday, the 16th day of June current, and on that day delivered to you, for the sum of eight hundred dollars, and which were returned by you to my stable on Tuesday, the 17th day of June current, are still at my stable, but as your property and not as my own ; that said horses are subject to your order and c(mtrol ; that any expense I am at in keeping said horses and for medical attendance on one of them on account of an injury received by it after they were delivered to you and while in your possession, I shall charge to you and seek 1 The statement of facts has been slifchtly abbreviated, and a portion of the dissenting opinion in which Moore v. Potter, 155 N. ST. 481, is explained, has been omitted. 542 PUTNAM V. GLIDDEN. [CHAP. IV. to recover the same of you in addition to the agreed price of eight hundred dollars. " You are further requested to remove said horses from my premises, and are hereby notified that the same are at my stable at your risk, and that I shall not be responsible for any accident or injury to them." The plaintiff brought an action of contract against the defendant for the purchase price of the horses under the sale referred to, on June 21, 1890, and the cause came to trial in the Superior Court for the County of Middlesex, at the September term, 1891, when a verdict and judgment were rendered for the plaintiff for the contract price, and the defendant paid the amount of said judgment and costs ; and on said October 17 the defendant called for the horses at the plaintiff's stable, and the plaintiff delivered them to the defendant. The action above mentioned was solely to recover the contract price, and during the time the plaintiif kept the horses they were not used by him. If upon the above facts the plaintiff was entitled to recover for keeping the horses during the above mentioned period, then judgment was to be entered for the sum of five hundred and thirty-two dollars. If the plaintiff was entitled to recover for the care and keeping during such time only as would enable the plaintiff to resell the horses to advantage, then it was agreed that twenty-one days from and after June 17, 1890, would give the plaintiff a reasonable time in which to make the sale, and judgment was to be entered for the sum of thirty- five dollars ; otherwise, judgment was to be entered for the defendant. J. C. Burke, for the defendant. F. W. Qua, for the plaintiff. Knowlton, J. On the agreed statement of facts in this case the question is whether the law implies a contract on the part of the defendant to pay for the keeping of the horses. The burden of proof is on the plaintiff, and no inferences of fact can be drawn in his favor, Old Colony Railroad v. Wilder, 137 Mass. 536. It has been said that, when a vendee returns or declines to receive property sold him, the vendor has his choice "of either one of three methods to indemnify himself: (1.) He may store or retain the pro- perty for the vendee, and sue him for the entire purchase price ; (2.) He may sell the propertj", acting as the agent for this purpose of the vendee, and recover the difference between the contract price and the price obtained on such resale ; or (3.) He may keep the property as his own, and recover the difference between the market price at the time and place of delivery, and the contract price." Dustau v. McAndrew, 44 N. Y. 72, 78. Haines v. Tucker, 50 N. H. 307. Girard V. Taggart, 5 S. & R. 19. Rosenbaums v. Weeden, 18 Gratt. 785. Holland v. Rea, 48 Mich. 218, 224. Cook v. Brandeis, 3 Met. (Ky.) 555. Bagley v. Findlay, 82 111. 524. Where the vendee contends that the property is not his, and treats SECT. II.] WRIGLEY, JR., ET AL. V. CORNELIUS ET AL. 543 it as belonging to the vendor, and the vendor elects to keep it for the vendee and sue for the entire contract price, there is no implied con- tract on the part of the vendee to pay the vendor the expense of keeping it. Whiting v. Sullivan, 7 Mass. 107. Earle v. Coburn, 130 Mass. 596. In such cases, when there is a controversy about the title, the election of the vendor to take care of the property is often more for his own benefit, in view of the risk that the main question in dis- pute may be decided against him, than for the benefit of the vendee, and the attitude of the vendee is equivalent to an express prohibition of the keeping on his account and at his expense. If tlie vendor wishes to avoid the expense of keeping, and at the same time to avail himself of the value of the property, he may sell under an implied agency for the vendee, and sue for the balance above what he obtains after paying the reasonable expenses. In the present case the plaintiff elected to sue for the entire con- tract price, and, in the opinion of a majority of the court, there is no principle of law which permits him now to maintain a second suit for the expense of keeping the horses, either during the whole time while the litigation was pending, or for that part of it which would have been required to enable him properly to dispose of the horses, if he had chosen to sell them on the defendant's account, and, after apply- ing the proceeds, to sue for the balance due him. Judgment for the defendant} WILLIAM WRIGLEY Jr., et al. v. GEORGE M. CORNELIUS, ET AL. Illinois Supkeme Court, June 13, 1896. [Reported in 162 Illinois, 92.] Mr. Justice Craig delivered the opinion of the court : ^ This was an action of assumpsit, brought by appellees in the county court of Cook county, against appellants, to recover a certain sum of money alleged to be due on account of the failure of appellants to ac- cept and pay for 2426 World's Fair pictures which appellees had sold 1 H^-dc V. Lindsaj', 29 Can. Sup. Ct. 594, contra. See iilj-o Rubin v. Sturtevant, 80 Fed. Rep. 9.30, 932 (C. C. A.). Reasonaljle expenses incurreil in making a resale may be deducted from the gross price realized. Hill v. McKay, 94 Cal. 5; Barnes v. Ulutiienthal, 101 Ga. 598; Ridgley v. Mooney, 16 Ind. App. 302; Ingram ». Wackernafrcl, 83 la. 82; Mattinply r. Mathews, 14 Ky. L. Ro]). .300; Tripp v. P'orsaith Machine Co., 09 N. H. 233, 235; Pollen r. Le Rov, 30 N. Y. 549; Lewis v. Greider, 51 N. Y. 231 ; Sawvor v. Dean, 114 N. Y. 481 ; White »;. "Mat- ador Land Co., 75 Tex. 405; Chapman v. Larin, 4 ('an. Suji. Ct. 349; but not compensation for the st'ller's services. I'eiin i". Smith, 93 Ala. 47G; Gelil v. Milwaukee Produce Co., 105 Wis. 573. See also Rrunswick Grocery Co. V. Lamar, 116 Ga. 1. 2 A portion of the opinion is omitted. 544 WRIGLEY, JR., ET AL. V. CORNELIUS ET AL. [CHAP. IV. appellants in the spring of 1893, at a certain stipulated price. On a trial of the cause in the county court the plaintiffs recovered the amount claimed to be due, and appellants appealed to the Appellate Court, where the judgment was affirmed. It is claimed by appellees they sold 10,000 World's Fair pictures to appellants, at fifteen cents each, on the 10th day of April, 1893. Of these, 7574 were delivered and paid for, but the balance, 2426, appel- lants refused to accept. Upon appellants' refusal appellees sold the pictures at five and one-half cents each, — the best price they could obtain, — and brought this action to recover the difference between the contract price and the amount received. On the other hand, the appellants claim that they only ordered 5000 pictures but finally re- ceived 7574, and deny the making of a contract for 10,000. At the request of appellees the court gave to the jury the following instruction : " If you believe, from the evidence, that defendants agreed to receive and pay for 10,000 pictures, and that before all of said pictures had been delivered defendants refused to receive the residue of said pictures, and told plaintiffs that they might do what they pleased with the residue of said pictures, then plaintiffs might re-sell the resi- due of said pictures without giving defendants any notice of the sale." The law is well settled that where the vendee refuses to receive goods purchased, the vendor may re-sell the goods and sue for the difference between the contract price and the amount received upon a re-sale. There may be, and doubtless are, cases where the vendor would be required to give the vendee notice before making a sale. But the conduct of the vendee may be such that notice will be waived. Where, as was the case here, there is an absolute refusal on behalf of the vendee to receive the goods, and the vendor is notified to do what he may choose with them, no notice of a re-sale will be required. The law never requires any person to do a useless act, and why should notice be given by the vendor when he has been told by the vendee to dispose of the goods in any manner he may choose ? In Ullmann v. Kent, 60 111. 271, in the discussion of the question of notice, the court said (p. 274) : ''If a sale is desired and is the best, upon the failure of the vendee to comply, and notice to him is the positive requirement of the law, what shall the seller do if the buyer abscond or is temporarily absent or his locality is unknown ? The instances would be numerous in which a notice would be impracticable and could not be given. . . . There is no necessity for the rule. It would greatly embarrass trade; would subserve no good purpose; would impose always an unnecessary and sometimes an impossible duty upon the seller, and would afford no protection to the buyer. The safest, wisest, and most honest rule is, that parties should be left to the consequences flowing from their contracts. It is both rea- sonable and right that a party guilty of a breach of contract should pay damages therefor, if any have accrued." SECT. II.] WEIGLEY, JR., ET AL. V. CORNELIUS ET AL. 545 In Maulding v. Steele, 105 111. 644, tlie court, in approving the doc- trine announced, said (p. 647) : '' This court held in the case of Ull- mann v. Kent, 60 111. 271, that on the sale of chattels, and the purchaser refused to receive and pay for them, the vendor might re-sell the goods and recover the difference in the price, if there was a loss on re-sale, without notice to the purchaser that a re-sale would be made, — and this decision was made on a review of the authorities, American and English, the weight of which establishes that doctrine." In Plumb V. Campbell, 129 111. 101, the Supreme Court said (p. 110) : "We think, however, that the Appellate Court decided correctly in holding that on appellant's theory of the case, under the facts, no notice of appellee's intention to sell was required. (Ullmann v. Kent, 60 111. 271.) The proof tends to show, and we must presume that the fact is established, that after the expiration of twenty days from the delivery of the bonds to appellant he was requested by appellee to comply with the terms of the contract and that he declined to do so. No further notice to him was necessary. Appellee might then legally sell, and hold appellant liable for the loss sustained." See, also, Morris v. Wibaux, 159 111. 627. In New York the courts hold that while notice of re-sale may be properly given it is not essential. Van Brocklen v. Smeallie, 140 N. Y. 70 ; Pollen v. Leroy, 30 id. 549. We find no substantial error in the record, and the judgment of the Appellate Court will be affirmed. Judgment affirmed} 1 Magnes v. Sioux City Seed Co., 14 Col. App. 219; Clore v. Robinson, 18 Ky. L. Rep, 851; Mann v. National Oil Co., 87 Hun, 5.58; Waples v. Overtaker, 77 Tex. 7 (Executed Sale), (ICC. See also McLean v. Slum, 4 Bing. 722; Acebal v. Levj', 10 Bing. 37G; Ingram V. WackernageJ, 83 la. 82. Davis Ore Co. v. Atlanta Guano Co., 109 Ga. 607; Redmond v. Smock, 28 Ind. 365; Ridgley v. Mooney, 16 Ind. App. 362; Dill v. Mumford, 19 Ind. App. 609; Nelson v. Ilirsch, 102 Mo. App. 498; Woldert v. Arledgc, 4 Tex. Civ. App. 692 ; Rosenbaums t>. Weeden, 18 Graft. 78.5, 794; Pratt v. S. Freeman & Sons Mfg. Co., 115 Wis. 648, contra. See also Holland v. Rea, 48 Mich. 218. Thougli it is well to give notice of the time and place of sale, such notice is not indis- pensable. Holland v. Rea, 48 Mich. 218; Pollen v. Le Roy, 30 N. Y. 549; Van Brocklen v. Smeallie, 140 N. Y. 70; Gashell v. Morris, 7 W. & S. 22; Rosenbaums v. Weeden, 18 Gratt. 785, 794; American Leather Co. v. Chalkley, 101 Va. 458; Pratt v. S. Freeman & Sons Mfg. Co., 115 Wis. 648. But see Hickock v. Hoyt, 33 Conn. 553. 646 RHODES V. MOONEY. [CHAP. IV. RHODES V. MOONEY. Ohio Supreme Court, January Term, 1885. [Reported in 43 Ohio St. 421.] The Jackson Iron Company sold to E. K. Chamberlain one hundred tons of iron at a specified price, to be paid in cash on delivery of Rhodes & Co.'s warehouse receipt. The receipt of Rhodes & Co. stipulated that they were to deliver the iron on return of such receipt. E. K. Chamberlain failing, on tender of the receipt to pay, the Jackson Iron Company brought suit against him for the contract price, alleging that it sold and delivered the iron to E. K. Chamberlain. The Jackson Iron Company has retained the receipt at all times. After verdict in favor of the Jackson Iron Company for the con- tract price, $4,896.73 and costs, E. K. Chamberlain made an assign- ment of all his property to John B. Mooney, for the benefit of creditors, and the creditors of E. K. Chamberlain met and unanimously selected J. A. Smith as trustee in the matter of the assignment, eighteen cred- itors being present, and the Jackson Iron Company, whose claim was stated as $4,800, voting as an unsecured creditor. Judgment was subsequently rendered on the verdict, and thereupon John B. Mooney demanded the iron of Rhodes & Co. On refusal, John B. Mooney brought suit against Rhodes & Co. for damages as upon a conversion of the iron.^ The case was tried to a jury, and the court charged that by the recovery of the judgment the lien upon the iron was lost. The jury accordingly returned a verdict for the plaintiff and judgment was ren- dered thereon. The case now comes up on petition in error. F. J. JVinrj, for plaintiff in error. V. P. Kline, J. A. Smith and Arnold Green, for defendants in error. McIlvaine, C. J. On an agreement for the sale of goods to be paid for on delivery, when payment on tender of goods is refused, the ven- dor can not be deprived of the right of possession against his consent, until payment is made or tendered. Perhaps no one will dispute this proposition. After tender of the goods and refusal to pay, the vendor may bring his action against the vendee, and recover the contract price, although the right of possession still remains in him. Granting that the election of the vendor to sue the vendee on the contract for the purchase price, vests in the vendee the right of pro- 1 The statement of facts has been abbreviated. SECT. II.] RHODES V. MOONEY. 547 perty, it is nevertheless true, under the contract, that the right of possession remains in the vendor in the nature of a pledge to secure the payment of the purchase-money, and after judgment, the goods may be seized in execution, as the property of the vendee. I can see no objection to such proceeding by execution at law. But, at all events, if interests be subsequently acquired in the property from the vendee, which would preclude the seizure of the property in the hands of the vendor, as the property of the vendee, it is beyond doubt that equity would take hold of the property, and apply it to the payment of the purchase-money. Whether the right of the vendor to have the goods sold and re- maining in his possession applied to the payment of the purchase- money be at law or in equity, I am satisfied that the right of posses- sion for the purpose of security can not be taken away without his consent. Beyond doubt, in this case, the vendor, the Jackson Iron Company, did not deliver the goods to the purchaser. Chamberlain. It is true, he tendered the warehouse receipt, according to contract, and de- manded payment. Payment being refused, the vendor retained the receipt. The goods were held by Khodes & Co., warehouse-men, as bailees of the vendor. This relation was not changed. It is conceded that the Jackson Iron Company recovered a judg- ment against Chamberlain for the full contract price. After judg- ment. Chamberlain assigned for the benefit of creditors to Mooney, the plaintiff in the original action, who brought this suit against Khodes & Co., the bailees of the Jackson Iron Company, for the re- covery of the goods. The question in the case was, whether Mooney, as assignee of Chamberlain, or Rhodes & Co., as bailees of the Jack- son Iron Company, were entitled to the possession of the goods. The case below turned upon a single fact. The Jackson Iron Com- pany, in its action against Chamberlain for the purchase price, averred in its petition that the goods had been sold and delivered. It would undoubtedly have been sufficient to have averred that the goods had been sold and tendered, but, inasmuch as payment was refused by Chamberlain, the possession of the goods had been retained by the plaintiff, who was ready and willing to deliver, upon payment of the price. In this case, I admit the averment of delivery, in the petition in the former case, was entitled to weiglit as an admission of the vendor that there had been an actual delivery to the plaintiff's assignor. But I deny that admission was conclusive between the parties to this suit. Beyond all question it was untrue. I can find no element of estoppel in the admission as against the defendants in this case. Neither the plaintiff nor his assignor was misled by the averment. • On the trial below tlie case was tried on the theory that in an action by a vendor for full purcliase jirice, an averment of the delivery of goods is conclusive, and that the subsequent retention of the goods by 548 McELWEE ET AL. V. METROPOLITAN LUMBER CO. [CHAP. IV. the vendor as security for the purchase-money is wrongful, although by tlie contract of sale such retention is stipulated for. In this there was error, for which the judgment below should be reversed. Judgment reversed, and cause remanded to the court of common pleas for a new trial} McELWEE ET AL. V. METROPOLITAN LUMBER COMPANY. Circuit Court of Appeals for the Sixth Circuit, July 2, 1895. {Reported in 69 Federal Reporter, 302.2] In error to the Circuit Court of the United States for the Northern Division of the Western District of Michigan. The facts were as follows : — The Metropolitan Lumber Company made a contract in May, 1892, with S. B. Barker & Co. for the sale to them of all the product of its mill during the season of 1892. It was agreed that the amount of lumber manufactured each month should be determined by inspectors on the first day of the succeeding month, and that S. B. Barker & Co. should give their notes due in ninety days for the price, less the freight from the Metropolitan Company's mill in Michigan to Chicago. It was also agreed that, if S. B. Barker & Co. did not desire the lumber shipped as fast as made, the Metropolitan Company would renew S. B. Barker & Co.'s notes for the price so long as the lumber remained in its possession, not exceeding ninety days. At the close of the season, on November 12, 1892, a considerable quantity of lumber remained in the possession of the Metropolitan Company, for which notes were outstanding, having been discounted by the Metropolitan Company. It was claimed that, shortly after the close of the season of 1892, in consideration of S. B. Barker & Co.'s executing their note for the lumber, made between November 1st and 12th, before the end of that month, the Metropolitan Company had agreed to turn over absolutely to S. B. Barker & Co. all its right and title to the lumber on hand, and thereafter held such lumber as bailee of S. B. Barker & .Co. In January, 1893, S. B. Barker & Co. requested renewals of such notes, under the clause in the contract providing therefor, and new notes 1 See also Tuthill v. Skidmore, 124 N. Y. 148. 2 Also reported in 37 U. S. App. 266 and 16 C. C. A. 232. SECT. II.] McELWEE ET AL. V. METROPOLITAN LUMBER CO. 549 were given, maturing in May, June, and July. On May SOtli S. B. Barker & Co. failed, and the Metropolitan Company at once asserted a right to retain the lumber remaining in its possession. The plaintiffs, McElwee & Carney, claiming to have bought the lumber from S. B. Barker & Co., replevied it and brought this action. The jury found for the defendant, but many exceptions were taken by the plaintiffs to the charge of the trial judge and to his refusal to charge as requested. Further facts appear in the opinion. F. 0. Clark and Hanchett & Hanchett, for plaintiffs in error. F. D. Mead and Ball & Ball, for defendant in error. Before Taft and Lurton", Circuit Judges, and Severens, District Judge. LuRTON, Circuit Judge, after stating the facts as above, delivered the opinion of the court. Though the agreement was originally executory, being for the sale of lumber to be manufactured, yet, when the product of a particular month was completed, and it had been inspected and measured, there was a complete bargain and sale of the lumber thus designated. That particular lumber became appropriated to the contract, and the vendee nnder the agreement was obliged to make his promissory note to the vendor for the price, payable 90 days after date. The element neces- sary to a perfect and complete sale was supplied by the appropriation of a particular lot of lumber to the contract. In the absence of a con- trary intention, clearly expressed by other parts of the contract, the right of property and of possession would vest in the buyer upon the execution of his promissory note payable to the seller. The pro- vision for a final inspection at Escanaba after the delivery had begun was merely for the correction of errors before final settlement, and does not operate to defeat the presumption that title passed when the lumber was first inspected and accepted and conditional payment made. Macomber v. Parker, 13 Pick. 183 ; Cotton Press Co. v. Stan- ard, 44 Mo. 71. To say that title remained with the vendor after the lumber had been appropriated to the contract and accepted by the buyer, and after the negotiable notes of the vendee had been delivered in settlement, would leave the vendor liable for loss by fire or other casualty, and tlie vendee without security for the payment he had made. The clause concerning the risk, from fire, of lumber carried over from the season of 1892, was not interpreted by the defendant in error as leaving the risk with the defendant during tlie season ; for the insurance carried in its own name was, by its own procurement, made payable to Barker & Co., to the extent of their interest. It may be added that, at the date when the right of plaintiffs in error ac- crued, this insurance had been transferred to Barker & Co. as owners, and was being carried by them. Neither did the provision that the vendor should deliver at Chicago prevent the title from passing before such delivery. Undoubtedly, the general rule is that if the seller obligates himself as a part of his contract to deliver the property 650 McELWEE ET AL. V. METROPOLITAN LUMBER GO. [ciur. IV. to the buyer at some specified place, title will not pass until such delivery. The Venus, 8 Crancli, 275 ; Sneathen v. Grubbs, 88 Pa. St. 147; Benj. Sales, §§ 325, 377; Com. v. Greenfield, 121 Mass. 40. "Slight evidence," says Mr. Benjamin, "is, however, accepted as suf- ficient to show that title passes immediately on the sale, though the seller is to make a delivery. The question, at last, is one of intent, to be ascertained by a consideration of all the circumstances." Benj. Sales, § 329. Here the lumber cut, inspected, and measured was com- pletely identified. Nothing more remained to be done to put it in a deliverable condition. It was then paid for. The delivery might be delayed by the neglect of the seller, or for the convenience of the buyer. In paying for the lumber, the price of the freight was de- ducted. Under such circumstances, it would be difficult to say that, if the lumber should be destroyed without fault of the seller, the loss would not fall on the buyer. Terry v. Wheeler, 25 N. Y. 520, is much in point. That was a case of the sale of lumber which was selected by the buyer, and measured and piled in the yard of the seller, and the price was paid. The seller, however, agreed, as part of the con- tract, to deliver the lumber free of charge on board of the cars, no time being specified. The lumber was destroyed by fire on the day of sale, and the buyer sued to recover his purchase money. Selden, J., said : '* No case has been referred to by counsel, nor have I discovered any, in which, where the article sold was perfectly identified and paid for, it was held that a stipulation of the seller to deliver at a particular place prevented the title from passing. If the payment was to be made on or after the delivery, at a particular place, it might fairly be inferred that the contract was executory, until such delivery ; but where the sale appears to be absolute, the identity of the thing fixed, and the price for it paid, I see no room for an inference that the pro- perty remains the seller's merely because he has engaged to transport it to a given point. I think in such case the property passes at the time of the contract, and that in carrying it the seller acts as bailee and not as owner." Hobbs v. Carr, 127 INIass. 532 ; "Weld v. Came, 98 Mass. 152; Lingham -o. Eggleston, 27 Mich. 324; Underbill v. Boom- ing Co., 40 Mich. 660 ; Booming Co. v. Underbill, 43 Mich. 629, 5 N. W. 1073 ; Steam Mill Co. v. Brown, 57 Me. 9 ; Hatch v. Oil Co., 100 U. S. 135 ; Dyer v. Libby, 61 Me. 45. The passage of title does not militate against the existence of a vendor's lien. Such a lien arises upon the vesting of the title in the vendee, and is a mere right of the vendor to retain possession until the price is paid. If the title remains with the vendor, there is no- lien ; and this was explicitly stated to the jury, who distinctly found in their general verdict that the appellee had a vendor's lien. If such a lien existed when appellants replevied the lumber involved, it arose in consequence of facts occurring after the vendee gave his original notes. The agreement to give credit for 90 days after each instal- SECT. II.] McELWEE ET AL. V. METROPOLITAN LUMBER CO. 551 ment of lumber was placed in a deliverable condition, and had been inspected and estimated, was wholly inconsistent with any right of the vendor to retain possession until the price was paid. The duty of immediate delivery, credit having been given, was wholly inconsist- ent with a right to hold as security for the purchase price. '• Selling goods on a credit means ex vi terminorum that the buyer is to take them in his possession, and the vendor is to trust to the buyer's promise for the payment of the price at a future time." Benj. Sales (Corb. Ed.), § 1182. The doctrine is well stated in the leading English cases of Bloxam V. Sanders, 4 Barn. & C. 941, and Bloxam v. Morley, Id. 951, by Bay- ley, J., who thus stated the general principles concerning the lien of a vendor of goods : " The vendor's right in respect of his price is not a mere lien which he will forfeit if he parts with the possession, but grows out of his original ownership and dominion. If goods are sold on credit, and nothing is agreed on as to the time of delivering the goods, the ven- dee is immediately entitled to the possession, and the right of pos- session and the right of property vest at once in him ; but his right of possession is not absolute ; it is liable to be defeated if he becomes insolvent before he obtains possession. Tooke v. HoUingworth, 5 Term R. 215. If the seller has dispatched the goods to the buyer, and insolvency occur, he has a right, in virtue of his original ownership, to stop them in transitu. Why ? Because the property is vested in the buyer so as to subject him to the risk of any accident. But he has not an indefeasible right to the possession, and his insolvency, without payment of the price, defeats the right. The buyer, or those who stand in his place, may still obtain the right of possession if they will pay or tender the price; or they may still act on their right of property, if anything unwarrantable is done to that right. If, for instance, the original vendor sell when he ought not, they may bring a special action against him for the damage tliey sxistain by such wrongful sale, and recover damages to the extent of that injury ; but they can maintain no action in which the right of property and the right of possession are both requisite, unless they have both those rights." Thus, after the execution to the vendor of the promissory notes of the vendee, the title or right of property and the right of possession to the lumber embraced within eacli monthly settlement were vested in Barker & Co. The actual, manual possession was with the Metro- politan Lumbes Company, which was under obligation to deliver to the buyer as delivery should be required. Delivery could not be re- fused unless one of two things should occur before the actual posses- sion was surrendered, namely, insolvency of the buyer or nonpayment of the price when the credit expired. In case of the happening of either of these contingencies before the actual possession of the lum- \ 552 MCELWEE ET AL. r. METROPOLITAN LUMBER CO. [CHAP. IV. ber passed from the seller to the buyer, the vendor's lien, which had been waived by a sale on a credit, would revive, and the vendor might lawfully retain his possession until the price was paid. Even if goods have been delivered to a carrier consigned to the vendee, and insol- vency occurs before they reach the actual possession of the buyer, the vendor may exercise the right of stoppage in transitu to recover his possession, and thereby revive his lien. The right of stoppage in transitu is but an equitable extension or enlargement of the vendor's lien, and is not an independent or distinct right. 2Benj. Sales (Corb. Ed.), §§ 1229-1245; Loeb v. Peters, 63 Ala. 249; Babcock v. Bonnell, 80 N. Y. 244. In the very well considered case of White v. Welsh, 38 Pa. St. 420, it was said by the court that : " Judges do not ordinarily distinguish between the retainer of goods by a vendor and their stoppage in transitu on account of the insol- vency of the vendee, because these terms refer to the same right, only at different stages of perfection and execution of the conti*act of sale. If a vendor has a right to stop in transitu, a fortiori he has a right of retainer before any transit has commenced." ''The rule is," said the court, " that so long as the vendor has the actual possession of the goods, or as long as they are in the custody of his agents, and while they are in transit from him to the vendee, he has a right to refuse or countermand the final delivery, if the vendee be in failing circum- stances." Unless, therefore, the actual possession had been surrendered be- fore the alleged change in the contract, to be hereafter considered, the vendor's lien would revive, in case insolvency occurred before delivery or the period of credit expired and the price was unpaid. The effect upon the vendor's right of the expiration of the period of credit while the actual possession is with the vendor is thus stated : " When goods have been sold on credit, and the purchaser permits them to remain in the vendor's possession till the credit has expired, the vendor's lien, which was waived by the grant of credit, revives upon the expiration of the term, even though the buyer may not be insolvent." Benj. Sales (Corb. Ed.), § 1227.^ This revesting of the lien is not affected by the fact that the seller had received conditional payment by promissory notes or bills of ex- change, nor by the fact that such notes or bills had been negotiated so that they Avere outstanding when they matured, or unmatured and outstanding when the insolvency occurred. Benj. Sales (Corb. Ed.), §§ 1130-1185, and note 4; Valpy v. Oakeley, 16 Q. B. 941 ; Griffiths v. Perry, 1 El. & El. 680; Grice v. Richardson, L. R. 3 App. Cas. 319; W^hite V. Welsh, 38 Pa. St. 420 ; Wanamaker v. Yerkes, 70 Pa. St. 443 ; Arnold v. Delano, 4 Gush. 33 ; Townley v. Crump, 4 Adol. & E. ace. 1 Leahy v. Lobdell, 80 Fed. Rep. 665, 667 (C. C. A.); Robinson v. Morgan, 65 Vt. 37, BECT. II.] McELWEE ET AL. V. METROPOLITAN LUMBER CO. 553 68.* The liability of defendant in error as indorser on such notes as had been negotiated operated to continue the relation of an unpaid vendor. The right of retention is not a right of recision, and it is not essential to the revival of the lien that the notes of the purchaser shall be delivered up or ready for delivery, though in Arnold v. De- lano, cited above, it seems to have been so regarded. If, after the revival of the vendor's lien by expiration of the credit, the seller extended further credit by taking renewal notes, payable at a future date, the revived lien would be waived, unless there was some agree- ment that this further credit should not have that effect, and that the seller should hold the property as security for the renewal notes. This state of things seems to have been contemplated by the parties ; for, by one of the clauses of the original contract, a provision was made for renewals or extensions for such time as the lumber in the actual possession of the vendor when an extension was granted should " re- main in the possession " of the lumber company, " not exceeding ninety days." The reasonable construction to be placed upon this provision is that the revived lien, resulting from the expiration of the original credit, should not be waived by renewal of purchase notes and an ex- tension of credit. Before such extension, the buyer undoubtedly had the right of property and right of possession. After such renewals, all right of possession till the renewal notes were paid was lost. In- dependently of the agreement that extended credit should not waive the lien which had been revived by expiration of original credit, the insolvency which occurred during the running of the renewal notes would operate to revive the suspended lien, and, between vendor and vendee, or a subvendee standing on no higher ground than the vendee, the defendant in error had a right to hold the possession till the renewal notes were paid. The authorities already cited fully sustain this position. Aside from all questions arising on the alleged modification of November 14, 1892, and all questions of estoppel, the rights of the defendant in error, in the actual possession of lumber which had not been paid for, would not be affected by a sale to a third person. Such a subvendee would buy subject to the right of the ven- dor to hold possession as security for renewal notes ; and, without regard to this special agreement, a subvendee would take subject to the possibility that before possession was obtained the lien might be revived by insolvency of the vendee or expiration of the stipulated credit. These considerations lead us to the conclusion that the rights of the plaintiffs in error, as subvendees, must, as the learned judge who presided at nisi prius instructed the jury, depend either upon questions of estoppel or upon the legal effect of the modification in the contract as defeating any right of lien in the vendor. The con- struction given the original contract that the title did not vest in the 1 Brewer Lumber Co. v. Boston & Albany li. Co., 179 Mass. 228, ace. 554 McELWEE ET AL. V. METKOPOLITAN LUMBER CO. [CHAP. IV. purchaser till delivery at Chicago, though erroneous, was harmless. It is a matter of no moment to plaintiffs in error whether the defend- ant in error had a right of retention by reason of the fact that it had not parted with the title or because it had a vendor's lien. In either case, plaintiffs in error must fail in this action. This brings us to the legal effect of the alleged modifications of November 14, 1892. [The requests for rulings on this point made on behalf of the plaintiffs] imply that a mere agreement by which the title and right of possession vested in Barker & Co. would operate to prevent the subsequent attachment of a vendor's lien as a result of renewals, or as a consequence of insolvency before payment. Neither presents any question of estoppel operating to prevent the vendor from setting up a lien against subvendees. On this subject the jury were in substance and effect instructed that the plaintiffs could not recover unless it was found that the modification gave to Barker & j Co. not only the title and the right of possession, but also auunquali-l fied right to sell and transfer the lumber to third persons, and that this right of sale had been exercised in favor of plaintiffs. The charge more than once assumed, and in distinct terms instructed the jury, that there had been no change of possession ; that the possession at time of insolvency was with the vendor. The objection most earnestly insisted on to this charge is that the court drew no distinction between an actual and constructive posses- sion by the vendee ; that it ignored the possibility that the vendor may, by agreement, make a constructive delivery to the vendee, and remain in possession as agent or bailee of the vendee. Though this question is now much pressed, it is noticeable that there is no distinct recognition of the question, either in the charge or requests for charge. The only way in which it can now be made the subject of an assign- ment of error is by the suggestion that the court assumed that there had been no constructive transfer of possession because the actual possession remained with the defendant in error. There is no evi- dence in this record which would justify a finding that there was an agreement that, after the modifications of November 14th, the vendors should no longer remain in possession as vendors, but should there- after hold as agent or bailee for Barker & Co. Upon the contrary, the construction placed upon the agreement, after the alleged modifi- cations, by both parties, was wholly inconsistent with any change in the character in which the vendor remained in the actual possession. The claim of Barker & Co. for an extension of credit was made upon the clause providing for renewals while the vendors remained in pos- session, and the whole correspondence was based upon the theory that the lumber would stand as a security for the renewal notes. On the evidence before the jury, it was not error to assume, as the trial judge did. that at the occurrence of the vendee's insolvency, there had been no delivery to the vendee, either actual or constructive. Neither do SECT. II.] McELWEE ET AL. V. METROPOLITAN LUMBER CO. 555 we tliink that it would follow, if there was such evidence, that a mere agreement, express or implied, by an unpaid vendor, to hold posses- sion as bailee or agent for the vendee, would operate as such a de- livery to the vendee as to prevent the revivor of the vendor's lien if the vendee should fail before the actual possession was lost. It is to be borne in miud that this right of the vendor springs out of the rela- tion of the parties and the natural equity that the vendor shall not be compelled to complete a contract by delivery when the vendee has not paid the price, or by insolvency becomes unable to carry out his side of the agreement. As put by Bay ley, B., in Miles v. Gorton, 2 Cromp. & M. 511 : " Although everything may have been done so as to divest the pro- perty out of the vendor, and so as to throw upon the vendee all risk attendant upon the goods, still there results to the vendor out of the original contract a right to retain the goods until the payment of the price." The case of Barrett v. Goddard, where the opinion was by Justice Story on circuit, and reported as No. 1046, Fed. Cas., is much relied upon by j)laintiffs in error. That case is, however, exceptional, and is founded for the most part on Hurry v. Mangles, 1 Camp. 452, where the rights of a subvendee had intervened, who had bought and paid for the goods, and then paid rent to the vendor as warehouseman. In Miles v. Gorton, 2 Cromp. & M. 506, Hurry v. Mangles was dis- tinguished, upon the ground that the vendor, by receiving rent from a subvendee, had delivered the goods to the subvendee, and thereafter held as agent for the subvendee and not as agent for the vendee. The other cases cited by Justice Story are cases where the question was one of delivery to the vendee under the statute of frauds, and are applicable only in respect of questions upon the formation of the con- tract. There is a clear distinction between a delivery which will suf- fice to take a case without the statute of frauds, and an agreement of a vendor to hold in the character of bailee for the vendee, as a delivery sufficient to divest the vendor's lien or prevent its revival on insol- vency or expiration of period of credit. Benj. Sales (Corb. Ed.), §§ 1131-11.34, 1187; Miles v. Gorton, 2 Cromp. & M. 504; Hurry v. Mangles, 1 Camp. 452 ; Tanner v. Scovell, 14 Mees. & W. 28-37 ; Townley v. Crump, 4 Adol. & E. 58 ; Grice v. Eichardson, L. R. 3 App. Cas. 319. The case last cited is an opinion of the House of Lords, and was decided as late as 1877. The doctrine of Miles v. Gorton, heretofore cited, was distinctly affirmed. In that case it ap- peared that the vendors were warehousemen, and made an arrange- ment with the luirchasers that they should pay Avarehouse rent, and the sale was on a credit. It was held — First, that unless actual pos- session of goods sold has been delivered to the purchaser, the vendor is not deprived of his right of lien as against the assignee of the pur- chaser in the event of insolvency ; second, that, as the goods remained 656 McELWEE ET AL. V. METROPOLITAN LUMBER CO. [CHAP. IV. in the possession of the vendors, and no actual delivery had been made to the purchaser, the vendors' lien revived upon the insolvency of the vendee, notwithstanding the vendors had become bailees for the vendee. The case was argued by Mr. Benjamin, the learned author of the work on Sales of Personal Property, in favor of the view announced by the House of Lords. Other English cases bearing upon the question are : Dodsley v. Varley, 12 Adol. & E. 632 ; Valpy v. Oakeley, 16 Q. B. 941 ; McEwan v. Smith, 2 H. L. Gas. 309. Entertaining these views, it is clear that, if the defendant in error is debarred from asserting a vendor's lien upon the insolvency of the vendee, it must be because the plaintiffs in error have acquired rights as subpurchasers which the vendor is estopped to deny or contravene by the assertion of a lien. What are these rights, and what is their origin ? As mere subpurchasers of lumber in the actual possession of the vendor, they only acquire the right and interest of the vendee. If, at the time they bought, the vendor had no lien, no right of reten- tion, then they would acquire the right to demand delivery. But the right of a vendee who has bought on a credit is not an absolute right to demand delivery. The right is dependent upon the preservation of his credit, and, if he becomes insolvent before he obtains actual possession, the lien of the vendor revives, and the insolvent vendee must pay the purchase price before he can deprive the vendor of the goods remaining in his possession. So, if the vendor, for any reason, remain in the actual possession until the period of credit has expired, his lien revives. Now, a subvendee buys only this de- feasible right of the vendee ; and, if he does not obtain the actual possession or obtain from the vendor an actual attornment to him, as in Hurry v. Mangles, cited heretofore, and the credit given the vendee expires while the vendor holds the actual possession, or the vendee becomes insolvent, he cannot, in the absence of some estoppel, deprive the unpaid vendor of his actual possession.i The rights of subven- dees have most often been under consideration in cases involving the doctrine of stoppage in transitu. But the principle is the same where transit has not begun. It was well said in White v. Welsh, 38 Pa. St. 420, that, " if a vendor has a right of stoppage in transitu, a fortiori he has a right of retainer before any transit has begun." Now the right of stoppage in transitu, special legislation out of the way, can only be defeated by the transfer of a bill of lading to an indorsee who bona fide gave value for it. Benj. Sales (Corb. Ed.), § 1285; Lick- barrow V. Mason, 1 Smith, Lead. Cas. (Ed. 1879) 753. It will not be defeated by a mere assignment while in transit, or by an attachment by creditors of vendee. Benj. Sales (Corb. Ed.), § 1242 ; Mississippi Mills V. Union & Planters' Bank, 9 Lea, 318; White v. Mitchell, 38 Mich. 390 ; Harris v. Pratt, 17 N. Y. 249 ; Umber Co. v. O'Brien, 123 1 Robinson v, Morgan, 65 Vt. 37, ace. SECT. II.] CRUMMEY V. RAUDENBUSH. 557 Mass. 12-44 ; Calahan v. Babcock, 21 Ohio St 281 ; Stanton v. Eager, 16 Pick. 476 ; Wood v. Yeatman, 15 B. Mon. 273 ; Loeb v. Peters, 63 Ala. 243. No snbsale during transit will defeat the right, unless the bill of lading be transferred. In the late case of Kemp v. Falk, L. E, 7 App. Gas. 573-582, it was said by Lord Blackburn that " no sale, even if the sale had actually been made with payment, would put an end to the right of stoppage in transitu." [The court, after examination of the evidence, found that no notice of any sales had been given to the defendants until after the bank- ruptcy, that the lumber which the plaintiffs claimed had been con- tracted for by the plaintiffs and the Hines Lumber Company, that the contracts had not specified the property sold except by statement of a given number of feet of lumber on the defendant's docks, and that to obviate the difficulty in regard to title, the Hines Lumber Company, after demand for the lumber had been made and refused, assigned its contract right to the plaintiffs, the amount of lumber on the docks being apparently less than enough to satisfy both contracts. On these facts the court held that even assuming that the assignment operated to vest title in the whole in the plaintiffs, the title was not thus vested until after the insolvency of Barker & Co., and the lien had then attached. The court further held that there was nothing in the modi- fied agreement made on November 14 which would estop the defend- ant from asserting its lien.] ^ GEORGE B. CRUMMEY v. SAMUEL W. RAUDENBUSH. Minnesota Supreme Court, November 10-December 7, 1893. [Reported in 55 Afinnesota, 426.] MiTcnKLL, J. Stated according to its legal effect, the contract, upon which this action was broiight, was an executory one for the sale of a piano by defendant to plaintiff, a part of the price being paid at the date of the contract, and the balance to be paid in quar- terly installments from and after the date of the delivery of the piano. The action is for damages for a refusal to supply the piano according to the contract. It is not alleged that the balance of the price has ever been paid or tendered, the plaintiff standing on the terms of the contract that it was to be furnished on credit. Much *^ The statement of facts has been much abbreviated and portions of the opinion omitted. 558 CRUMMEY V. KAUDENBUSH, [CHAP. IV. of the answer consists of entirely irrelevant matters, the only defense alleged being that since the making of the contract the plaintiff had become, and still is, insolvent, and the only important question in the case is whether the defendant has established a defense justify- ing his refusal to deliver the piano on that ground. "Where a vendor contracts to sell personal property on credit, he thereby agrees to waive liis lien for the purchase money ; but he does so on the implied condition that the vendee shall keep his credit good. If, therefore, before payment, and while the vendor still re- tains possession of the property, he discovers that the vendee is insolvent, he may hold the goods as security for the price. The insolvency of the vendee does not rescind the contract, and is not of iitself a ground for rescission. It merely entitles the vendor to de- mand payment in cash before parting with possession of the pro- ' perty. Courts have differed as to the name to be given to this right, but they all recognize its existence. Like the analogous right of stoppage in transitu, it grows out of the vendor's original ownership and dominion, and is founded on the equitable principle that one man's property ought not to go to pay another man's debt. The right is not limited to cases where the insolvency of the vendee oc- curred after the date of the contract, but exists also even where the insolvency existed at that time, but was not discovered by the ven- dor until afterwards ; and, as the presumption of both reason and law is that, where a vendor sold goods on credit, he believed that the purchaser was solvent and able to pay, the burden is on the vendee to prove that tlie vendor had knowledge of the insolvency at the time, and entered into the contract with that knowledge. The right is not affected by the fact that part of the price has been paid ; and it makes no difference whether the sale was of a specific article ap- propriated to the contract, or, as in this case, a contract to supply an article of a certain description. The term "insolvent" is not used in any technical sense. It is not necessary that the vendee should have been adjudged a bankrupt or insolvent, or have made an assign- ment of his property. Insolvency, as applied to this branch of law, means a general inability to pay one's debts or to meet one's financial engagements. Passing to the facts of this case, an examination of the evidence satisfies us that it amply justified the trial court in find- ing that the plaintiff was insolvent in the fullest sense of the term. It follows that defendant had a right to refuse to deliver the property without payment in full of the price, provided he propeily asserted that right, and had not in some way waived it.^ 1 In Akeley v. Mississippi Boom Co., 64 Minn. 108, 113, Mitchell, J., speaking of a carrier's lien said: "All the authorities are agreed that a lien is waived or lost by any contract or course of conduct inconsistent with the existence of a lien. A common example of such a waiver is where credit is given by contract to the shipper for the price of transportation beyond the time when the property is to be delivered and placed out of the carrier's con- SECT. II.] CEUMMEY V. EAUDENBUSH. 659 The contract was made in April, 1889. The evidence is practically undisputed that for some two years afterwards the defendant was not only able and ready to furnish the piano, but repeatedly urged the plaintiff to come and select an instrument, but that he failed to do so, giving as a reason his inability to meet the payments. Finally, in the winter or early spring of 1893, after defendant had ceased to represent that make of piano in the trade, and hence no longer kept it in stock, the plaintiff for the first time formally demanded the delivery of the instrument within a specified time. Failing in some efforts to induce plaintiff to accept a piano of another kind, the de- fendant required some assurance that, if he procured a piano of the kind called for by the contract, the plaintiff would be ready to pay for it in cash, or give a mortgage on the instrument to secure the purchase price. The plaintiff positively refused to agree to do either, and insisted on the terms of the original contract for the de- livery of the property on credit, which defendant as positively refused to do. The evidence would fully justify the conclusion that the defendant was always willing to furnish the piano if plaintiff would pay the price in cash, or secure it by mortgage on the property, and that his refusal merely went to the extent of refusing to furnish it on credit without security. But at no time during the negotiations did defendant assign the insolvency of the plaintiff as his reason for demanding cash or secu- rity, or give any special reason for doing so, except that when de- manding the mortgage he said it was the custom of the trade. On this ground plaintiff's counsel invoke the doctrine that if a person, when called upon to deliver, places his right to retain the goods upon a ground inconsistent with a claim by virtue of a specific lien, this is a waiver of the lien ; and that on the trial he will not be permitted to rest his refusal on a different and distinct ground from that on which he claimed to retain the property at the time of the demand. An examination of the authorities on the subject, from the early case of Boardman v. Sill, 1 Camp. 410, down, satisfies us that they all proceed upon principles essentially of equitable estoppel, and limit the application of the doctrine invoked by counsel to cases where tlie refusal to deliver the property was put on grounds inconsistent with tlie existence of a lien, or on grounds entirely independent of it, with- trol. The Bird of Paradise, 5 Wall. 545; Hutchinson, Carr. §§ 483-487. And if the lien is thus waived the insolvency of the shipper, or his default in payment at the exi)iratioii of the credit, occurrinf,' while the goods still remain in the possession of the carrier, will not reinstate it. The Rird of Paradise, suprn ; An Sahle H. B. Co. v. Sanborn, .30 Mich. 358. The law seems to he otherwise in the case of a vendor who sells o!i credit, ("rum- mey v. Kaudenhush, 55 Minn. 426, 56 N. W. 1113. Why this distinction is made in favor of a vendor may not be entirely clear on principle, although it is usually placed upon the ground of the vendor's original ownership of the property. But the law seems to be well settled as we have stated it." 560 CRUMMEY V. RAUDENBUSH. [CHAR. IV. out mentioning a lien. Thus it has been repeatedly held that a lien is not waived by mere omission to assert it as the ground of refusal, or by a general refusal to surrender the goods, without specifying the groimd of it, except in certain cases, where the lien was unknown to the person making the demand, and that fact was known to the per- son on whom the demand was made. In such cases, if the ground of the refusal is one that can be removed, the other party ought in fair- ness to have an opportunity to do so. But no such state of facts exists in this case. While defendant did not specify his vendor's lien by reason of plaintiff's insolvency as the ground of his refusal, yet he never placed his refusal on any ground inconsistent with or independent of it. On the contrary, from first to last, what he in- sisted on was payment of, or security for, the price of the property ; and the ground of his refusal was the refusal of plaintiff to give either. True, at the last, he announced his positive refusal to furnish the piano unless plaintiff would agree to give a chattel mortgage on it, — a thing which he had no legal right to insist on ; but it is very evi- dent that this demand on defendant's part was merely an alternative for payment in cash, which he had a riglit to demand, but which plain- tiff had refused. The plaintiff probably had a right to be informed, as he was, that the property was held for the purchase money, for that was a matter which he could remedy by payment, but it would have availed him nothing to be informed that defendant's right to retain the property for the price was based on his insolvency, for that was a fact which he could not have changed. We can see no- thing in defendant's acts of omission or commission that amounted to a waiver of his title, or which should estop him from now assert- ing it. The rulings of the trial court on the admissibility of evidence as to plaintiff's insolvency were not always correct, or even consistent ; but the only error of which plaintiff could complain is that, in one instance, the defendant was allowed to give his opinion that plaintiff was insolvent. We think, however, that this was error without prejudice, for the reason that the other evidence, such as plaintiff's own admission of inability to pay ; the inability of others, after search and inquiry, to find any property belonging to him ; and that he was not in any business in this state, of which he had practically ceased to be a resident, — was such as, in the absence of any rebutting evidence, to require a finding that he was insolvent. Order affirmed. SECT. II.] AMES V. MOIR ET AL. 561 WILSON AMES v. ROBEKT MOIE et al. Illinois Supreme Court, October 31, 1889. [Reported in 130 Illinois, 582.] Mr. Justice Craig ^ delivered the opinion of the Court : This was an action of assumpsit, brought by Robert Moir & Co., in the Superior Court of Cook County, against Wilson Ames, to recover the price of one hundred barrels of highwines sold by the plaintiffs to the defendant on the 9th day of June, 1870. The action was brought upon a contract in writing, which was as follows : " Chicago, June 9, 1870. " I have this day bought of Robert Moir & Co. one hundred (100) barrels highwines, ' iron bound,' at one dollar seven cents ($1.07) per proof gallon. The conditions of sale are as follows : The buyer can call from 1st July to 20th of same month by giving three days' notice, and if not called for by the 20th July, the seller has the privilege of delivering up to the end of July by giving three days' notice, to be delivered in fifty barrel lots. To insure the fulfillment of this con- tract, a margin of $300 will be put up by both parties. "Wilson Ames." This instrument of writing, after it was executed by Ames on the day it bears date, was at once delivered to the agents of Moir & Co., and accepted by them. On the same day, a margin of $300 was put up by each party, as provided in the agreement. It also appears, that on the 15th day of July, 1870, Ames notified the agents of Moir & Co. to deliver the highwines. Upon receipt of the notice, the highwines were, on July 18, delivered by Moir & Co., and accepted by Ames, but Ames has never paid for the goods. After the highwines had been delivered, late in the afternoon of July 18, Ames absented himself from his place of business, and could not be found by the agents of Moir & Co. to make a demand of pay- ment for the highwines. They directed the porter in charge of Ames' warehouse to take care of the goods until morning, when they would call for the pay. When the agents called in the morning, Ames was nowhere to be found, and tliey found that he had shipped fifty barrels of the higliwines for New York, and the remaining fifty barrels were loaded on cars ready for shipment. Phillips & Carraichael immedi- ^ Portions of the opinion relating to the effect of the statute of limitations and bank- ruptcy are omitted. 562 AMES V. MOIR ET AL. [CIIAP. IV. ately replevied the fifty barrels wliich were found on cars in Cliicago, and went on to Detroit, Michigan, where they overhauled the other fifty barrels, and they were also replevied. Phillips & Carmichael sold the wines thus replevied to Shufeklt & Co. at ninety-seven cents per gallon, the market price at that time, and deposited the proceeds in bank to await the result of the replevin suits. It appears that between the time the wines were delivered, late in the afternoon of July 18, and the time the agents reached Ames' store next morning, Ames had sent all the wines to the Michigan Central depot, shipped them, obtained bills of lading, which were attached to drafts on the consignee in New York, — one for ^2800, and the other for $2900, — which drafts he discounted at the National Bank of Commerce on the security of the bills of lading. The replevin suits were defended by the National Bank of Commerce, and the defense interposed, that the bank was the pledgee of the highwines from Ames, in good faith, and without notice of Moir & Co.'s rights, was, in the end, sustained (see Michigan Central Railroad Co. v. Phillips, 60 111. 190), and the money realized on the sale of the highwines to Shufeklt & Co. was turned over to the National Bank of Commerce in payment of the drafts. In view of the fact that the wines were thus replevied and sold by the agents of Moir & Co., it is insisted that Moir & Co. elected to rescind the contract under which the highwines were sold to Ames, and having so elected, they can not now maintain an action upon it. It may be conceded that a contract for the sale of goods can not be rescinded and at the same time an action be maintained upon it for the contract price of the goods. But avc do not understand that the contract in this case was rescinded, or that any effort whatever was made to rescind the contract. When the wines were delivered, Moir & Co. were entitled to payment. The delivery and payment were con- current acts, and Moir & Co. were not bound to part with the absolute possession of the goods until they received the price named in the contract. In other words, they had a lien on the goods for the pur- chase money, which they were under no obligations to relinquish until payment was made. In Canadian Bank v. McCrea, 106 111. 281, this court held, that where goods are placed by the vendor in the hands of the purchaser in expectation that he will immediately pay the price, and he fails to do so, the vendor is at liberty to regard the delivery as conditional, and may at once reclaim the goods. But by holding the possession of the goods, or reclaiming them after the purchaser refuses to pay, the contract of sale is not thereby rescinded. The vendor merely retains possession to enforce his lien as vendor. What are the rights of a vendor of goods where the vendee refuses to pay upon delivery or an offer to deliver goods ? This question arose in Bagley v. Pindlay, 82 111. 525, and this court held that the vendor had three remedies : First, the vendor may store the goods for SECT. II.] AMES V. MOIR ET AL. 563 the vendee, give notice that he has done so, and then recover the full contract price ; second, he may keep the goods, and recover the excess of the contract price over and above the market price of the goods at the time and place of delivery ; third, the vendor may sell the goods to the best advantage, and recover of the vendee the loss, if the goods fail to bring the contract price. The same rule is laid down in Ben- jamin on Sales (2d ed.), sec. 88. Here, the possession of the goods was fraudulently obtained, with the view to ship them out of the State, and not pay the purchase money agreed to be paid. As against Ames, Moir & Co. had the right to replevy the goods, not for the pur- pose of rescinding the contract, but for the purpose of asserting the ) vendor's lien and holding the possession of the goods until Ames [should pay for the same. It turned out, hov.^ever, that the action of replevin was unavailing, as the goods had, by the act of Ames, passed into the custody of innocent purchasers before they were reached by the writ of replevin, and the proceeds of the goods were used in pay- ment of the advances of the National Bank of Commerce. Benjamin on Sales, section 735 (2d ed.), says : " The vendor's remedy, after a re-sale made in the absence of an express reservation of the right, is assumpsit on the original contract, which was not rescinded by the re-sale." This was the course pursued here, and we regard it correct. We have been referred, in the argument, to Kellogg v. Turpie, 93 111. 265, and Uoane v. Lockwood, 115 id. 490, and also to cases decided in the courts of other States, where it has been held that the rescis- sion of a contract of sale, where there was fraud in the contract, was inconsistent with a subsequent action on the contract, — that if the contract was rescinded by the vendor on the ground of fraud in the contract, a subsequent action on the contract itself could not be main- tained. We concur fully in the law as laid down in these cases, but they have no application to the facts of this case. As heretofore stated, the commencement of the action of replevin was not a rescis- sion of the contract by Moir & Co., but it was a proceeding to enforce the vendor's lien. To place the wines in that position the vendors had the right to hold them in until the vendee should pay for them. Judgment affirmed} 1 See also Allyn v. Willis, 65 Tex. 65. I 564 WISEMAN V. "VANDEPUTT. [CHAP. IV. SECTION III. Stoppage in Transitu. WISEMAN V. VANDEPUTT. In Chancery, Hilary Term, 1690. [Reported in 2 Vernon, 203.] The plaintiffs being assignees under a statute of bankruptcy taken out against tlie Bonnells, brought their bill for a discovery and relief, touching two cases of silk at first consigned by Altoniti and Antinori to the Bonnells, then considerable merchants in London ; but before the ship set sail from Leghorn, news came that the Bonnells were failed, and thereupon Altoniti and Antinori alter the consignment of the silks, and consign them to the defendant. Upon the first hearing, the court ordered all letters, papers, &c., to be produced, and that the parties proceed to a trial in trover, to see whether the first consignment, notwithstanding the altering thereof, and new consignment made, before the ship sailed, vested the property of those silks in the Bonnells ; and upon the trial, and verdict being given for the plaintiffs, the cause now came on upon the equity reserved. The court declared the plaintiffs ought not to have had so much as a discovery, mucli less any relief in this court in regard that the silks were the proper goods of the two Florentines, and not of tlie Bonnells, nor the produce of their effects ; and therefore, they having paid no money for the goods, if the Italians could by any means get their goods again into their hands, or prevent their coming into the hands of the bankrupts, it was but lawful for them so to do, and very allowable in equit}'. And it was so ruled in the like case between Wigfall and Motteux, &c., and lately between Hitchcox and Sedgwick in case of a purchase, without notice of bankruptcy. Therefore decreed an account, if any- thing due from the Italians to the Bonnells, that should be paid the plaintiffs, but they should not have the value of the silks by virtue of the consignment or verdict, and put the Italians to come in as creditors under the Statute of Bankrupts. SECT. III.] D'AQUILA V. LAMBERT. 566 BUEGHALL v. HOWARD. In Guildhall, after Hilary, 1759. [Reported in I H. Blackstone, 365, noteJ] One Burghall at London gave an order to Bromle}' at Liverpool to send him a quantity of cheese. Bromley accordingly shipped a ton of cheese on board a ship there, whereof Howard the defendant was master, who signed a bill of lading to deliver it in good condition to Burghall in London. The ship arrived in the Thames, but Burghall having become a bankrupt, the defendant was ordered on behalf of Bromley not to deliver the goods, and accordingly refused, though the freight was tendered. It appeared by the plaintiff's witnesses that no par- ticular ship was mentioned, whereby the cheese should be sent, in which case the shipper was to be at the risk of the peril of the seas. The action was on the case upon the custom of the realm against the defendant as a carrier. Lord Mansfield was of opinion that the plaintiffs had no foundation to recover, and said he had known it several times ruled in Chancer}-, that where the consignee becomes a bankrupt, and no part of the price had been paid, that it was lawful for the consignor to seize the goods before the}' come to the hands of the consignee or his assignees ; and that this was ruled, not upon principles of equity only, but the laws of property. The plaintiffs were nonsvAted. D'AQUILA y. LAMBERT. In Chancery, June 9, 1761. [Reported in 1 Ambler, 399.] The plaintiff, being a merchant at Leghorn, bought a large quantity of goods, by direction of defendant Israeli, who resided in England, and consigned them to him, and drew bills of exchange for the mone}'. The bills were accepted by Israeli, but were protested for non-payment, on Israeli's becoming insolvent, and making a composition with his creditors, and assigning his effects in trust for them. The goods arrived at the port of London, and the agent for the con- signor, and the agent for the creditors, severally applied to the captain for the goods, but he refused to deliver them till the right was settled. Bill b}' plaintiff to have the goods delivered. Lord Northington, C. This is a question of extent and con- sequence in trade. If it had been res integra, I should have required a more extensive argument, and taken time to consider ; but it is not 566 LICKBAEKOW V. MASON. [CHAP. IV. a case of difficulty. lias been settled by several determinations, which have been universally approved of by merchants. The plaintiff is sub- stantially to be considered as a merchant selling goods to Israeli. The case of Wilkinson is in point. It was determined, on solid reasons, that the goods of one man should not be applied in payment of another man's debts. Goods to be delivered to plaint if . ^ LTCKBARROW v. MASON. In the King's Bench, November 9, 1787. In the Exchequer Chamber, February 11, 1790. In the House of Lords, Trinity Term, 1793. In the King's Bench, July 2, 1794. [Reported in 2 Term Reports, 63 ; I H. Blackstone, 357; 2 Ih. 211 ; 6 East. 20, note; 5 Term Reports, 683.] Trover for a cargo of corn. Plea, the general issue. The plaintiffs, at the trial before BuUer, J., at the Guildhall Sittings after last Easter Term, gave in evidence that Turing and Son, merchants at Middle- bourg in the province of Zealand, on the 22d July, 1786, shipped the goods in question on board the "Endeavor" for Liverpool by the order and directions, and on the account of Freeman of Rotterdam. That Holmes, as master of the ship, signed four several bills of lading for the goods in the usual form unto order or to assigns ; two of which were indorsed b}' Turing and Son in blank, and sent on the 22d July, 1786, by them to Freeman, together with an invoice of the goods, who afterwards received them ; another of the bills of lading was retained by Turing and Son, and the remaining one was kept by Holmes. On the 25th Jul}-, 1786, Turing and Son drew four several bills of exchange upon Freeman, amounting in the whole to £477 in respect of the price of the goods, which were afterwards accepted by Freeman. On the 25th of July, 1786, Freeman sent to the plaintiffs the two bills of lading, together with the invoice which he had received from Turing and Son, in the same state in which he received them, in order that the goods might be taken possession of and sold by them on Freeman's account ; and on the same day Freeman drew three sets of bills of exchange to the amount of £520 on the plaintiffs, who accepted them, and have since duly paid them. The plaintiffs are creditors of Freeman to the amount of £542. On the 15th August, 1786, and before the four bills of exchange drawn by Turing and Son on Freeman became due, Freeman became a bankrupt: those bills were regularly protested, and Turing and Son have since been obliged, as drawers, to take them up and pay them. The price of the goods so SECT. III.] LICKBAREOW V. MASON. 567 shipped by Turing and Son is wholly unpaid. Turing and Son, hearing of Freeman's bankruptcy on the 21st of August, 1786, indorsed the bill of lading, so retained by them, to the defendants, and transmitted it to them, with an invoice of the goods, authorizing them to obtain posses- sion of the goods on account of and for the use and benefit of Turing and Son, which the defendants received on the 28th August, 1786. On the arrival of the vessel with the goods at Liverpool on the 28th August, 1786, the defendants applied to Holmes for the goods, produc- ing the bill of lading, who thereupon delivered them, and the defendants took possession of them for and on account of, and to and for the use and benefit of Turing and Son. The defendants sold the goods on account of Turing and Son, the proceeds whereof amounted to £557. Before the bringing of this action the plaintiffs demanded the goods of the defendants, and tendered to them the freight and charges ; but neither the defendants or Freeman have paid or offered to pay the plaintiffs for the goods. To this evidence the defendants demurred ; nnd the plaintiffs joined in demurrer. Ersl:ine, in support of the demurrer; Manly ^ against it. Shepherd, in support of the demurrer ; Bearcroft, contra. AsHHURST, J. As this was a mercantile question of very great im- portance to the public, and had never received a solemn decision in a court of law, we were for that reason desirous of having the matter argued a second time, rather than on account of any great doubts which we entertained on the first argument. We may lay it down as a broad general principle, that, wherever one of two innocent' persons must suffer by the acts of a third, he who has enabled such third per- son to occasion the loss must sustain it. If that be so, it will be a strong and leading clew to the decision of the present case. It has been argued, that it would be very hard on a consignor, who has re- ceived no consideration for his goods, if he should be obliged to deliver them up in case of the insolvency of the consignee, and come in as a creditor under his commission for what he can get. That is certainly true ; but it is a hardship which he brings upon himself. When a man sells goods, he sells them on the credit of the buyer : if he deliver the goods, the property is altered, and he cannot recover them back again, though the vendee immediately become a bankrupt. But where the delivery is to be at a distant place, as between the vendor and vendee, the contract is ambulatory till delivery; and tiiercfore, in case of the insolvency of the vendee in the mean time, tiic vendor may stop the goods in transitu. But, as between the vendor and third persons, the delivery of a bill of lading is a delivery of the goods themselves ; if not, it would enable the consignee to make the bill of lading an instrument of fraud. The assignee of a bill of lading trusts to the indorsement; the instrument is in its nature transferable; in this respect therefore this is similar to the case of a bill of exchange. If the consignor had intended to restrain the negotiability of it, he should have confined the delivery of the goods to the vendee only : but he has .V;H M<;i:i;ai;|;')W v. MAHO.v. [cmaI'. fV, rn.'i'lc it an iiidoiH.'il/lc inHl.riirucdt,, So If, \h liko a tnW of ay«;f; Uk; coriHi(l«:rul,iori ma}' l»; ^orifj into, yer;t Uj a hill of ladinj<. Though the hill of lading in this case wax at, first itidorseij in hlank, it is pref;isely the same as if it had heen origin.'illy indorsed to this [>erson ; for when it was fill';'! up with his name, it was the same as if made to him only. 'J'hen what was said hy Lord MansfhrM in the case of Wright and Camphell, 4 liurr. 2040, goes the full length of this doctrine : " Jf the goods he bona Jldc Hold hy the factor at He?i (an they may l»e wli»;re no othcT f founding my juflgrnrint iipf)fi it, hut hecause I would not have it supposfjfl in any future r;ase that it f»assed iinnoticcrl, or that it may not hereafter havf; any effect whie.h it ought l/> have. In this case it is staU'd that there were four hills of lading: it appears hy the hooks treating on this suhject, that acconling \a) the crxrimofi f;ours<; of merrhants there arc only three: orw. of whi<'h is delivererl t/; the ftaptain of the vessel, another is trans- mitt<;d f/> the consignee, and the third is retaincfl hy the consignor liimself as a f/!stimony against the caf;tain in case of any loose dealing. •Now, Jf it he at present the estahlisherl course among m<;rchantH Ut have only three hills of lading,, the circumstance of there heing a fourth in this ease might, if the f;asfr had not h(!f!n taken out of thf; linrids of the jury hy the demuin-r, havr; heen f)rof»er for their fionsidfiration. I am aware that that circumstance appears in the hill, on whi'h is written, •• III witness the master hath aflirmrfj to f';iir hills of lafliiig. nil o( thin SECT. III.] LICKBAKROAV v. MASON. ^CO tonor and ilato." l>iit wo all know thai it is not tlio practice oiUior of pt'i'sons in trailo ov ii\ the professiciu to cxainino voiv niinuti'lv the wurds of an instnmu'ut, whicU is paitlv piiiitcil and partly written; !uul it' wo ou\\ look at tho substanco oi' suoli an insti iinioul. this niav be tho means of enabling the consignee to eonunit a fraud on an inno- cent person. Thett how stood the consignee in this case ; lie hail two of the bills of huling, and the captain nuist have a third ; so that the iissignee conUl not imagine that the consignor hail it in his power to order a delivery to any other pi'rson. Hut 1 moan to \:\\ this rir- cuuistance entirely out of my consideration in the present case, which 1 think turns wholly on the general question : and I make the question even more general than was made at the bar, namely, whether a bill of lading is by law a transfer of the property? This question has been argued upon authorities; and before I take notice oi' any paiiioular objections wliii'li have b(HM) made, I will consider those authorities. Tlie principal one rolud on by the defendants is that of Snee and Tresoot, 1 Atk. 'Jl.') ; now, sitting in a court of law, 1 should think it quite sullioient to say that that was a ilotermination in a eourt of equity, and foiiiuhHl on equitable principles. The leading maxim in that court is, that lie who seeks equity must first do e(iuity. 1 am not disposctl to liiul I'aiill with that determination as a oaso in equity ; but it is not sntlioiont to dooido such a question as that now before us. Lord llardwicke has, with his usual caution, enumerated every circumstance whieh existed in the ease: and indeed he has been so partioular, that it the printed note of it be accurate, which 1 doubt, it is not an authority for :in\ o.-iso whioli is not precisely similar to it. Tho only |>oiiil oi' law in that oaso is upon the forms of the bills of lading; and Lord llardwioko thought there was a distini'tit)n between bills of lading indorsed in blank, and those iiulorsed to particular persons: but it was properly admitted at the bar that that distinction cannot now be supporti'd. Thus the mat- ter stood till within these thirty years; .sinoo that time tho oomnioroial law of this country has taken a very ililferent turn from what it did before. We lind in Snee aiul rrescot that Lord llanlwicke himself was proceeding with great caution, not establishing any general |)rin- ciple, but decreeing on all the circnmslances t)f the caso put together. IJefore that period wo liiul that in oourts ol" law all the ovidonoi' in nu'reantile casos was thron'u togotlior; they were loft generally to a jury, and they produced lu) establisluHl principle. From that time we all know the great stiuly has Ihhii to find some oortain geiuMal prin- ciples, which shall be known to all mankintl, not only to rule the particular casi- then undor oonsidoration, luit to sorve as a guide for the futuri'. Most o[' us have hoard tlu'so priueiples stated, roasonoil upon, enlarged, ami explained, till we have boen K)st in admiration at the strenglh and stretch of the human undorstanding. And I slu)uld be very sorry to lind myself uiuler a necessity of ililTering from any case on this subject which has been decided by Lord iMansliold. who may be truly said to be the founder of the commercial law of this conn- 670 LICKBARROW ?'. MASON. [CHAP. IV. try. I hope to show, before I have finished my judgment, that there has been no inconsistency in any of liis determinations; but if there had, if I could not reconcile an opinion which he had delivered at Nisi Prius with his judgment in this court, 1 should not hesitate to adopt the latter in preference to the former : and it is but just to say that no jutlge ever sat here more I'eady than he was to correct an opinion suddenly given at Nisi Prius. First, as to the case of Wright and Campbell, that was a very solemn opinion delivered in this court. In my opinion, that is one of the best cases that we have in the law on mercantile subjects. There are four points in that case, which Lord Mansfield has stated so extremely clear that they cannot be mistaken. The first is, what is the case as between the owner of the goods and the factor ; the second, as between the consignor and the assignee of tiie ftictor with notice ; thirdly, as between the same parties without notice ; and fourthly, as to the nature of a bill of sale of goods at sea in general. It is to be recollected that the case of Wright and Camp- ])ell was decided by the judge at Nisi Prius upon the ground that the bill of lading transferred tlie whole property at law ; and when it came before this court on a motion for a new trial, Lord Mansfield confirmed that opinion ; but a new trial was granted on a suspicion of fraud : therefore it is fair to infer, that if there had been no fraud, the delivery of the bill of lading would have been final. If there be fraud, it is the same as if the question were tried between the consignor and the origi- nal consignee. According to a note of Wright and Campbell, which I took in court. Lord Mansfield said, that since the case in Lord Ray- mond (Evans v. Marlett, 1 Lord Ra}-. 271), it had alwa3-s been held that tlie delivery of a bill of lading transferred the property at law; if so, ever}- exception to that rule arises from equitable considerations which have been adopted in courts of law. The next case is that of Savig- nac and Cuff, 2 T. R. 66, the note of which is too loose to be depended upon : but there is a circumstance in that case, which might afl!brd ample ground for the decision ; for I cannot suppose that Lord Mans- field had forgotten the doctrine which he laid down in this court in Wright and Campbell. There he observed ver}' minutel}' on what did not appear at the trial, that no letters were produced, and that no price was fixed for the goods : but in Savignac and Cuff, the plain- tiff had not only the bills of lading and the invoice, but he had also the letters of advice, from which the real transaction must have ap- peared ; and if it appeared to him that Selvetti had not been paid . for the goods, that might have been a ground for the determination. The case of Hunter and Beal does not come up to the point now in dis- pute ; it only determines what is admitted, that, as between the vendor and vendee, the property is not altered till deliveiy of the goods. AVith respect to the case of Stokes and La Riviere, 2 T. R. 75, perhaps there ma}' be some doubt about the facts of it : however, it was deter- mined upon a different ground ; for the goods were in the hands of an agent for both parties : that case therefore does not impeach the doc SECT. III.] LICKBAPvROW V. MASON. 571 trine laid down in Wright and Campbell. It has been argued at the bar, that it is impossible for the holder of a bill of lading to bring an action on it against the consignor: perhaps that argument is well founded: no special action on the bill of lading has ever been brought ; for if the bill of lading transfer the property, an action of trover against the captain for non-delivery, or against any other person who seizes the goods, is the proper form of action. If an action be brought by a vendor against a vendee, between whom a bill of lading has passed, the proper action is for goods sold and delivered. Then it has been said that no case has yet decided that a bill of lading does transfer the property ; but in answer to that it is to be observed, that all the cases upon the subject, Evans r. Martlett, Wright v. Campbell, and Caldwell v. Ball, 1 T. R. 205, and the universal understanding of mankind, preclude that question. The cases between the consignor and consignee have been founded merely on principles of equity, and have followed up the principle of Snee and Prescot ; for if a man has bought goods, and has not paid for them, and cannot pay for them, it is not equitable that he should prevent the consignor from getting his goods back again, if he can do it before they are in fact delivered. There is no weight in the argument of hardship on the vendor: at any rate that is a bad argument in a court of law ; but in fact there is no hardship on him, because he has parted with the legal title to the consignee. An argument was used with respect to the difficulty of determining at what time a bill of lading shall be said to transfer the propert}-, especially in a case where the goods were never sent out of the merchant's warehouse at all : the answer is, that under those circumstances a bill of lading could not possibly exist, if the transaction were a fair one ; for a bill of lading is an acknowledgment by the captain, of having received the goods on board his ship : therefore it would be a fraud in the captain to sign such a bill of lading, if he had not received goods on board ; and the con- signee would be entitled to his action against the captain for the fraud. As the plaintiff in this case has paid a valuable consideration for the goods, and there is no color for imputing fraud or notice to him, I am of opinion that he is entitled to the judgment of the court. Judgment for the jylaintiff} The defendants in the original action, having brought a writ of error in the Exchequer Chamber, after two arguments, the following judg- ment of that court was there delivered by Lord Loughborough. This case comes before the court on a demurrer to the evidence; the general question therefore is, Wlielher the facts offered in evidence l)y the plaintiffs in the action are sufficient to warrant a verdict in their favor ?'^ . . . The defendants, in this case, are not stake-holders, but they arc in effect the same as Turings, and the possession they have got is the pos- session of Turings. The plaintiffs claim under Freeman, but thougn ' rjuosK, J., delivered a brief concurring opinion. •^ Lord Loughborough here stated the facts of the caso. 572 LICKBAKROW V. MASON. [CHAr. IV. they dorive a title under bira the}' do not represent him, so as to be answerable for his engagements, nor are they affected by any notice of tliose circumstances which would bar the claim of him or of his assignees. If tliey have acquired a legal right they have acquired it honestly, and if they have trusted to a bad title they are innocent suffer- ers. The question tlien is, Whether the plaintiffs have a superior legal title to that right wliich on principles of natural justice, the original holder of goods not paid for has to maintain that possession of them which he actually holds at the time of the demand? The argument on the part of the plaintiffs asserts that the indorsement of the l)ill of lading by the Turings is an assignment of the property in the goods to Freeman, in the same manner as the indorsement of a bill of exchange is an assignment of the debt. That Freeman could assign over tliat property, and that by delivery of the bill of lading to the plaintiffs for a valuable consideration, they have a just right to the prop- erty conveyed by it, not affected by any claim of the Turings, of which they had no notice. On the part of the defendant it is argued, that the bill of lading is not in its nature a negotiable instrument ; that it more resembles a chose in action ; that the indorsement of it is not an assignment that conveys any interest, but a mere authority to the con- signee to receive the goods mentioned in the bill ; and therefore it cannot be made a security by the consignee for money advanced to him ; but the person who accepted it must stand in the place of the consignee, and cannot gain a better title than he had to give. As these propositions on either side seem to be stated too loosely, and as it is of great importance that the nature of an instrument so frequent in com- merce as a bill of lading, should be clearl}' defined, I think it necessary to state my ideas of its nature and effect : A bill of lading is the written evidence of a contract for the carriage and delivery of goods sent by sea for a certain freight. The contract in legal language is a contract of bailment. 2 Lord Raym. 912. In the usual form of the contract the undertaking is to deliver to the order or assigns of the shipper. B}* the delivery on board the ship-master acquires a special property to support that possession which he holds in the right of another, and to enable him to perform his undertaking. The general property remains with the shipper of the goods until he has disposed of it by some act sufficient in law to transfer property. The indorsement of the bill of lading is simply a direction of the delivery of the o-oods. When this indorsement is in blank the holder of the bill of lading ma}' receive the goods, and his receipt will discharge the ship- master ; but the holder of the bill, if it came into his hands casually, without any just title, can acquire no property in the goods. A special indorsement defines the person appointed to receive the goods; his receipt or order would, I conceive, be a sufficient discharge to the ship- master ; and in this respect I hold the bill of lading to be assignable. But what is it that the indorsement of the bill of lading assigns to the holder or the indorsee? a right to receive the goods and to discharge SECT. III.] LICKBAEEOW V. MASON. 573 tlie ship-master, as having performed his undertaking. If any further elect be allowed to it, the possession of a bill of lading would have greater force than the actual possession of the goods. Possession of goods is prima facie evidence of title ; but that possession may be precarious, as of a deposit ; it may be criminal, as of a thing stolen ; it may be qualified, as of things in the custody of a servant, carrier or a factor. Mere possession without a just title gives no propert}" ; and the person to whom such possession is transferred by deliver}", must take his hazard of the title of his author. The indorsement of a bill of lading, differs from the assignment of a chose in action, that is to sa}', of an obligation, as much as debts differ from effects. Goods ni pawn, goods bought before delivery, goods in a warehouse, or on shipboard, may all be assigned. The order to deliver is an assignment of the thing itself, which ought to be delivered on demand, and the right to sue if the demand is refused, is attached to the thing. The case in 1 Lord Ilayra. 271, was well determined on the principal point, that the con- signee might maintain an action for the goods, because he had either a special property in them, or a right of action on the contract ; and I assent to the dictum, that he might assign over his right. But the question remains. What right passes by the first indorsement, or b}' the assignment of it? An assignment of goods in pawn, or of goods bought but not delivei'ed, cannot transmit a right to take the one with- out redemption and the other without the pa3'ment of the price. As the indorsement of a bill of lading is an assignment of the goods themselves, it differs essentially from the indorsement of a bill of exchange ; which is the assignment of a debt due to the payee, and which, by the cus- tom of trade, passes the whole interest in the debt so completelj', that the holder of the bill for a valuable consideration, without notice, IS not affected even b}" the crime of the person from whom he received the bill. Bills of lading differ essentially from bills of exchange in another respect. Bills of exchange can only be used for one given purpose, narael}', to extend credit by a speedy transfer of the debt, which one person owes another, to a third person. Bills of lading ma}- be assigned for as many different purposes as goods may be delivered. The}- ma}' be in- dorsed to the true owner of the goods by the freighter, who acts mcrel}' as his servant. They may be indorsed to a factor to sell for the owner. They may be indorsed by the seller of the goods to the buyer. They are not drawn in any certain form. They sometimes do, and somctimeg do not express on whose account and risk the goods are shipped. They often, especially in time of war, express a false account and risk. They seldom, if ever, bear upon the face of them, any indication of the purpose of the indorsement. To such an instrument, so various in its use, it seems impossible to apply the same rules as govern the Indorse- ment of bills of exchange. The silence of all authors treating of com- mercial law is a strong argument that no general usage has made them 571: LICKBARKOW V. MASON. [CHAP. IV. negotial»le as bills. Some evidence appears to have been given in other L-ases, that the received opinion of merchants was against their being so negotiable. And unless there was a clear, established general usage to place the assignment of a bill of lading upon the same footing as the indorsement of a bill of exchange, that country which should first adopt such a law, would lose its credit with the rest of the commer- cial woild. For the immediate consequence would be, to prefer the interest of the resident factors and their creditors, to the fair claim of the foreign consignor. It would not be much less pernicious to its internal commerce ; for every case of this nature is founded in a breach of confldence, always attended with a suspicion of collusion, and leads to a dangerous and false credit, at the hazard and expense of the fair trader. If bills of lading are not negotiable as bills of exchange, and yet are assignable, what is the consequence? That the assignee by indorsement must inquire under what title the bills have come to the hands of the person from whom he takes them. Is this more difficult than to inquire into the title by which goods are sold or assigned? In the case of Hartop v. Hoare, 2 Stra. 1187 ; 1 Wils. 8, jewels deposited with a goldsmith were pawned by him at a banker's. Was there any imputation, even of neglect, in a banker trusting to the apparent pos- session of jewels by a goldsmith? Yet they were the property of another, and the banker suffered the lo^s. It is received law, that a factor may sell, but cannot pawn the goods of his consignor. Patterson V. Tasli, 2 Str. 1178. The person therefore who took an assignment of goods from a factor in security, could not retain them against the claim of the consignor ; and yet in this case, the factor might have sold them and embezzled the money. It has been argued, that it is necessary in commerce to raise money on goods at sea, and this can only be done by assigning the bills of lading. Is it then nothing that an assignee of a bill of lading gains by the indorsement? He has all tiie right the in- dorser could give him ; a title to the possession of the goods when they arrive. He has a safe security, if he has dealt with an honest man. And it seems as if it could be of little utility to trade, to extend credit by affording a facility to raise money by unfair dealing. Money will be raised on goods at sea, though bills of lading should not be negotiable, in every case where there is a fair ground of credit: but a man of doubtful character will not find it so easy to raise money at the risk of others. The conclusions which follow from this reasoning, if It be just, are, 1st, That an order to direct the delivery of goods indorsed on a bill of lading, is not equivalent nor even analogous to the assignment of an order to pay money, by the indorsement of a bill of exchange. 2(lly, That the negotiability of bills and promissory notes is founded on the custom of merchants, and positive law ; but as there is no positive law, neither can any custom of merchants apply to such an instrument as a bill of lading. 3dly, That it is therefore not negotiable as a bill, but assignable ; and passes such right, and no better as the person assigning had in it. SECT. III.] LICKBAKROW V. MASON. 575 This last proposition I confirm by the consideration, that actual delivery of the goods does not of itself transfer an absolute ownership in them, without a title of property ; and that the indorsement of a bill of lading, as it cannot in anj' case transfer more right than the actual deliver}', cannot in every case pass the property ; and I therefore infer that the mere indorsement can in no case convey an absolute property. It may however be said, that admitting an indorsement of a bill of lading does not in all cases import a transfer of the property of the goods consigned, yet where the goods when delivered would belong to the indorsee of the bill, and the indorsement accompanies a title of property, it ought in law to bind the consignor, at least with respect to the interest of third parties. This argument has, I confess, a very specious appearance. The whole difficulty of the case rests upon it ; and I am not surprised at the impression it has made, having long felt the force of it myself. A fair trader, it is said, is deceived by the misplaced confidence of the consignor. The purchaser sees a title to the delivery of the goods placed in the hands of a man who offers them to sale. Goods not arrived are ever}- day sold without any suspicion of distress, on speculations of the fairest nature. The purchaser places no credit in the consignee, but ni the indorsement produced to him, which is the act of the consignor. The first consideration which affects this argument is, that it proves too much, and is inconsistent with the admission. But let us examine what the legal right of the vendor is, and whether, with respect to him, the assignee of a bill of lading stands on a better ground than the consignee from whom he received it. I state it to be a clear proposition, that the vendor of goods not paid for, may retain the possession against the vendee ; not by aid of any equit}', but on grounds of law. Our oldest books consider the payment of the price (day not being given) as a condition precedent implied in the contract of sale ; and that the vendee cannot take the goods, nor sue for them without tender of the price. If day had been given for pa}'- ment, and the vendee could support an action of trover against the vendor, the price unpaid must be deducted from the damages, in the same manner as if he*iiad brought an action on the contract, for the non-delivery. Snee v. Prescot, 1 Atk. 245. The sale is not executed before deliver}' ; and in the simplicity of former times, a delivery into the actual possession of tlie vendee or his servant was always sup- posed. In the variety and extent of dealing which tlie increase of commerce has introduced, tlie delivery may be presumed from circum- stances, so as to vest a property in the vendee. A destination of the goods by the vendor to the use of the vendee ; the marking them, or making them up to be delivered : the removing them for tlie purpose of l)eing delivered, may all entitle the vendee to act as owner, to assign, and to maintain an action against a tliird person, into whose hands they have come. But tlie title of the vendor is never entirely divested, till the goods have come into the possession of the vendee. lie has therefore a complete right, for just cause, to retract the intended deliv- 576 LICKBARROW V. MASON. [CHAP. IV. eiT, and to stop the goods i?i transitu. The cases determined in our courts of law liave confirmed tills doctrine, and the same law obtains in other countries. In an action tried before me at Guildhall, after the last Trinit}- Terra, it appeared in evidence that one Bowering had bought a cask of indigo of Verrulez & Co., at Amsterdam, which was sent from the warehouse of the seller, and shipped on board a vessel commanded b^- one Tulloh, b}- the appointment of Bowering. The bills of lading were made out, and signed by Tulloh, to deliver to Bowering or order, who immediately indorsed one of them to his correspondent in London, and sent it by the post. Verrulez, having information of Bowering's insolvency before the ship sailed from the Texel, summoned Tulloh the ship-master before the court at Amsterdam, who ordered him to sign other bills of lading, to the order of Verrulez. Upon the arrival of the ship in London, the ship-master delivered the goods, according to the last bills, to the order of Verrulez. This case, as to the practice of merchants, deserves particular attention ; for the judges of the court at Amsterdam are merchants of the most extensive dealings, and they are assisted by very eminent lawyers. The cases in our law, which I have taken some pains to collect and examine, are very clear upon this point. Snee v. Prescot, though in a court of equity, is professedly determined on legal grounds by Lord Hardwicke, who was well versed in the principles of law ; and it is an authority, not only in support of the right of the owner unpaid, to retain against the consignee, but against those claiming under the consignee by assignment for valuable consideration, and with- out notice. But the case of Fearou v. Bowers, 1 H. Bl. 364, n., tried before Lord Chief Justice Lee, is a case at law, and it is to the same effect as Snee u. Prescot. So also is the case of the Assignees of Burghall v. Howard, 1 H. Bl. 365, n., before Lord Mansfield. The right of the con- signor to stop the goods is here considered as a legal right. It will make no difference in the case, whether the right is considered as springing from tlie original property not yet transfei'red by delivery, or as a right to retain the things as a pledge for the price unpaid. In all the cases cited in the course of the argument, the right of the consignor to stop the goods is admitted as against the consignee. But it is contended, that the right ceases as against a person claiming under the consignee for a valuable consideration, and without notice that the price is unpaid. To support this position it is necessary to maintain that the right of the consignor is not a perfect legal right in the thing itself, but that it is only founded upon a personal exception to the consignee, which would preclude his demand as contraiy to good faith and unconscion- able. If the consignor had no legal title, the question between him and the bona fide purchaser from the consignee would turn on very nice considerations of equity. But a legal lien, as well as a right of property, precludes these considerations ; and the admitted right of the consignor to stop the goods in transitu as against the consignee, can only rest upon his original title as owner, not divested, or upon a legal SECT. III.] LICKBAEEOW V. MASON. 677 title to hold the possession of the goods till the price is paid, as a pledge for the price. It has been asserted in the course of the argu- ment, that the right of the consignor has by judicial determinations been treated as a mere equitable claim in cases between him and the consignee. To examine the force of this assertion, it is necessary to take a review of the several determinations : The first is the case of Wright v. Campbell, 4 Burr. 20-16, on which the chief stress is laid. The first observation that occurs upon that case is, that nothing was determined b}- it. A case was reserved by the judge at Nisi Prius^ on the argument of which the court thought the facts imperfectly stated, and directed a new trial. That case can- not therefore be urged as a decision upon the point. But it is quoted as containing, in the report of it, an opinion of Lord Mansfield, that the right of the consignor to stop the goods, cannot be set up against a third person claiming under an indorsement for value and without notice. The authority of such an opinion, though no decision had fol- lowed upon it, Avould deservedly be very great, from the high respect due to the experience and wisdom of so great a judge. But I am not able to discover that his opinion was delivered to that extent, and I assent to the opinion as it was delivered, and very correctly applied to the case then in question. Lord Mansfield is there speaking of the consignment of goods to a factor to sell for the owner ; and he very truly observes: 1st, That as against the factor, the owner may retain the goods ; 2dly, That a person into whose hands the factor has passed the consignment with notice, is exactly in the same situation with the factor himself; Sdl}-, That a bona fide purchaser from the factor shall have a right to the deliver}' of the goods, because the}' were sold bona flde^ and b}- the owner's own authority. If the owner of the goods intrust another to sell them for him, and to receive the price, there is no doubt but that he has bound himself to deliver the goods to the purchaser ; and that would hold equall}", if the goods had never been removed from his warehouse. The question on the right of the con- signor to stop and retain the goods, can never occur where the factor has acted strictly according to the orders of his principal, and where, consequently, he has bound him b}' his contract. There would be no possil)le ground for argument in the case now before the court, if the plaintiffs in the action could maintain tliat Turings & Co. had sold to them b}' the intervention of Freeman, and were therefore bound ex contractu to deliver the goods. Lord Mansfield's opinion upon the direct question of the right of the consignor to stop the goods against a third party, who has obtained an indorsement of the bill of lading, is quoted in favor of the consignor, as delivered in two cases at Nisi Prius : Savignac v. Cuff, 2 Term Rep. B. R. GG, in 1778, and Stokes V. La Riviere, 2 Term Rep. B. R. 75, in 1785. Observations are made on these cases, that they were governed b}' particular circumstances ; and undoubtedly when there is not an accurate and agreed state of them, no great stress can be laid on the authority. The case of Cald- 578 LICKBAKROW V. MASON. [CHAP. IV. well v. Ball, 1 Term Rep. \\. U. 205- is improperly quoted on the part oi" the plaintilfs in the action, because the question there was on the priority of consignments, and the right of the consignor did not come under consideration. The case of Hibbert v. Carter, 1 Term Rep. B. R. 745, was also cited on the same side, not as having decided an^' ques- tion upon the consignor's right to stop the goods, but as establishing a position, that l)y the indorsement of the bill of lading, the property was so completely transferred to the indorsee, that the shipper of the goods had no longer an insurable interest in them. The bill of lading in that case had been indorsed to a creditor of the shipper ; and undoubtedly if the fact had been as it was at first supposed, that the cargo had been accepted in payment of the debt, the conclusion would have been just; for the property of the goods, and the risk, would have completely passed from the shipper to the indorsee ; it would have amounted to a sale executed for a consideration paid. But it is not to be inferred from that case, that an indorsement of a bill of lading, the goods remaining at the risk of the shipper, transfers the property so that a policy of insurance upon them in his name would be void. The greater part of the consignments from the West Indies, and all countries where the balance of trade is in favor of England, are made to a creditor of the shipper ; but they are no discharge of the debt by indorsement of the bill of lading; the expense'of insurance, freight, duties, are all charged to the shipper, and the net proceeds alone can be applied to the discharge of his debt. That case therefore has no application to the present question. And from all the cases that have been col- lected, it does not appear that there has ever been a decision against the legal right of the consignor to stop the goods in transitu^ before the case now brought before this court. When a point in law which is of general concern in the daily business of the world is directly decided, the event of it fixes the public attention, directs the opinion, and regu- lates the practice of those who are interested. But where no such decision has in fact occurred, it is impossible to fix any standard of opinion, upon loose reports of incidental arguments. The rule there- fore which the court is to lay down in this case will have the effect, not to disturb, but to settle the notions of the commercial part of this country, on a point of ver}' great importance, as it regards the security and good faith of their transactions. For these reasons, we think the judgment of the Court of King's Bench ought to be reversed. The judgment of the Exchequer Chamber was reversed in the House of Lords, and a venire facias de novo directed to be awarded. The ground of the reversal was that the demurrer to evidence appeared to be informal on the record MS. On the principal question the following opinion was delivered before the House by — BcLLER, .J. Before I consider what is the law arising on this case 1 shall endeavor to ascertain what the case itself is. It appears that the two bills of lading were indorsed in blank by Turing, and sent so in- SECT. III.] LICKBARKOW V. MASON. 579 dorsed in the same state b}- Freeinan to the plaintiffs, in order that the goods might, on their arrival at Liverpool, be taken possession of and sold by the plaintiffs on Freeman's account. I shall first consider what is the effect of a blank indorsement ; and secondly, I will examine whether the words, "to be sold by the plaintiffs on Freeman's account," make any diff"erence in the case. As to the first, I am of opinion that a blank indorsement has precisely the same effect that an indorsement to deliver to the plaintiffs would have. In the case of bills of ex- change the effect of a blank indorsement is too universally known to be doubted ; and therefore on that head I shall only mention the case of Russel V. Langstaffe, Douglas, 49G, where a man indorsed his name on copper-plate checks, made in the form of promissory notes, but in blank, i. e., without any sum, date, or time of payment ; and the court held, that the indorsement on a blank note is a letter of credit for an indefinite sum ; and the defendant was liable for the sum afterwards inserted in the note, whatever it might be. In the case of bills of lad- ing, it has been admitted at your Lordship's bar, and was so in the Court of King's Bench, that a blank indorsement has the same efl'ect as an indorsement filled up to deliver to a particular person by name. In the case of Snee v. Prescot, Lord Hardwicke thought that there was a distinction between a bill of lading indorsed in blank, and one that was filled up, and upon that ground part of his decree was founded But that I conceive to be a clear mistake. And it appears from the case of Savignac v. Cuff (of which case I know nothing but from what has been quoted by the counsel, and that case having occurred before the unfortunate year 1780, no further account can be obtained), that though Lord Mansfield at first thought that there was a distinction be- tween bills of lading indorsed in blank and otherwise, yet he afterwards abandoned that ground. In Salomons u. Nissen, Mich. 1788, 2 Term Rep. 674, the bill of lading was to order or assigns, and the indorse- ment in blank ; but the court held it to be clear that the property passed. lie who delivers a bill of lading indorsed in blank to another not only puts it in the power of the person to whom it is delivered, but gives him authorit}' to fill it up as he pleases ; and it has the same effect as if it were filled up with an order to deliver to him. The next point to be considered is, what difference do the words, "to be sold by the plaintiffs on Freeman's account," make in the present case. It has been argued that they prove the plaintiffs to be factors onl}'. But it is to be observed that these words are not found in the bill of lading itself; and therefore they cannot alter the nature and construc- tion of it. I say the}- were not in the bill of lading itself; for it is expressly stated that the bill of lading was sent by Freeman in the same state in which it was received, and in that there is no restriction or qualification whatever ; but it appeared b}- some other evidence, I suppose by some letter of advice, that the goods were so sent, to be sold by the plaintiffs on Freeman's account. Supposing that the plaintiffs are to be considered as factors, yet if the bill of lading, as I 580 LICKBAKKOW V. MASON. [CHAP. IV. shall contenil presently, passes the legal propert}' in the goods, the cir- cinnstauee of the pUuutills being liable to render an account to Freeman for those goods afterwards will not put Turing in a better condition in this cause. For a factor has not only a right to keep goods till he IS paid all that he has advanced or expended on account of the par- ticular goods, but also till he is paid the balance of his general account. The truth of the case, as I consider it, is that Freeman transferred the legal property of the goods to the plaintiffs, who were to sell them, and pay themselves the £520 advanced in bills out of the produce, and so be accountable to Freeman for the remainder, if there were any. But if the goods had not sold for so much as £520 Freeman would still have remained debtor to the plaintiffs for the difference ; and so far only they were sold on Freeman's account. But I hold that a factor, who has the legal property in goods, can never have that prop- erty taken from him, till he is paid the uttermost fai'thing which is due to him. Kruger v. Wilcocks, Ambl. 252. This brings me to the two great questions in the cause, which are undoubtedly of as much im- portance to trade as any questions which ever can arise. The first is, Whether at law the property of goods at sea passes by the indorse- ment of a bill of lading? The second. Whether the defendant, who stands in the place of the original owner, had a right to stop the goods in transitu/ And as to the first, every authority which can be adduced from the earliest period of time down to the present hour agree that at law the property does pass as absolutely and as effectually as if the goods had been actually delivered into the hands of the con- signee. In 1G90 it was so decided in the case of Wiseman v. Vande- putt, 2 Vern. 203. In 1697, the court determined again, in Evans v. Marlett, that the property passes by the bill of lading. That case is reported in 1 Ld. Ray. 271, and in 12 Mod. 156, and both books agree in the points decided. Lord Raymond states it to be, that if goods by a bill of lading are consigned to A, A is the owner, and must bring the action ; but if the bill be special, to be delivered to A to the use of B, B ought to bring the action ; but if the bill be general to A, and the invoice onl}- shows that they are on account of B (which I take to be the present case), A ought always to bring the action ; for the property is in him, and B has only a trust. And Holt, C. J., says the consignee of a bill of lading has such a property as that he may assign it over ; and Shower said it had been so adjudged in the Exchequer. In 12 Mod. it is said that the court held that the invoice signified nothing ; but that the consignment in a bill of lading gives the property, except where it is for the account of another, that is, where on the face of the bill it imports to be for another. In Wright V. Campbell, in 1767, 4 Burr. 204G, Lord Mansfield said, " If the goods are brma fide sold by the factor at sea (as tliey may be where no other delivery can be given), it will be good notwithstanding the Stat. 21 Jac. I. The vendee shall hold them by virtue of the bill of sale, thougn no actual possession be delivered ; and the owner can never dispute SECT. III.] LICKBAKEOW V. MASON. 581 with the vendee, because the goods were sold bona fide, and by the owners own authority." His Lordship added (though that is not stated in the printed report), that the doctrine in Lord liaymond was right, that the property of goods at sea was transferable. In Fearon V. Bowers, in 1753, Lord C. J. Lee held that a bill of lading transferred the propert}", and a right to assign that px'operty b}' indorsement ; but that the captain was discharged by a delivery under either bill. In Snee v. Prescot, in 1743, 1 Atk. 245, Lord Hardwicke says, where a factor, b}' the order of his principal, buys goods with his own money, and makes the bill of lading absolutely in the principal's name, to have the goods delivered to the principal, in such case the factor cannot countermand the bill of lading, but it passes the propert}' of the goods fully and irrevocably in the principal. Then he distinguishes the case of blank indorsement, in which he was clearly wrong. He admits, too, that if upon a bill of lading between merchants residing in different countries, the goods be shipped and consigned to the principal ex- pressly in the body of the bill of lading, that vests the property- in the consignee. In Caldwell v. Ball, in 1786, 1 Term Rep. 205, the court held that the indorsement of the bill of lading was an immediate trans- fer of the legal interest in the cargo. In Hibbert v. Carter, in 1787, 1 Term Rep. 745, the court held again that the indorsement and deliveiT of the bill of lading to a creditor pi^ima facie conveyed the whole propertv in the goods from the time of its deliveiy. The case of Godfre}' v. Furze, 3 P. Wms. 185, was quoted on behalf of the defendant. A merchant at Bilboa sent goods from tlience to B, a merchant in London, for the use of B, and drew bills on B for the mone}'. The goods arrived in London, which B received, but did not pa}' tlie money, and died insolvent. The merchant be3'ond sea brought his bill against the executors of the merchant in London, praying that the goods might be accounted for to him, and insisting that he had a lien on them till paid. Lord Chancellor says, when a merchant beyond sea consigns goods to a merchant in London on account of the latter, and draws bills on him for such goods, though the money be not paid, yet the propert}' of the goods vests in the merchant in London, who is credited for them, and consequently they are liable to his debts. But where a merchant beyond sea consigns goods to a factor in London, who receives them, the factor in this case, being onl}- a servant or agent for the merchant beyond sea, can have no property in such goods, neither will the}' be affected by his bank- ruptcy. The whole of this case is clear law ; but it makes for the plaintiffs and not for the defendants. The first point is this very case ; for the bill of lading here is generally to the plaintiffs, and therefore on their account ; and in such case, though the money be not paid, the property vests in the consignee. And tliis is so laid down without regard to the question, whetlier the goods were received by the con- signee or not. The next point there stated is, what is the law in the case of a pure factor, without any demand of his own. Lord King says 582 LICKBARROW v. MASON". [CIIAP. IV. he would have no propert}'. This expression is used as between con- signor and consignee, and obviously- means no more than that, in the case put, tlie consignor ma}- recUxim the property from the consignee. The reason given by Lord King is, because in this case the factor is only a servant or agent for the merchant beyond sea. I agree if he be merely a servant or agent, that part of the case also is good law, and the principal may retain the property. But then it remains to be proved that a man who is in advance or under acceptances on account of the goods is simply and merely a servant or agent ; for which no authority has been, or, as I believe, can be produced. Here the bills were drawn by Freeman upon the plaintiffs upon the same day, and at the same time, as he sent the goods to them ; and therefore this must, by fair and necessary intendment, be taken to be one entire transac- tion ; and that the bills were drawn on account of the goods, unless the contrary appear. So far from the contrary appearing here, when it was thought proper to allege on this demurrer that the price of the goods was not paid, it is expressly so stated; for the demurrer says, that the price of the goods is now due to Turing and Son. But it finds that the other bills were afterwards paid by the plaintiffs ; and con- sequently they have paid for the goods in question. As between the principal and mere factor, who has neither advanced nor engaged in anything for his principal, the principal has a right at all times to take back his goods at will ; whether they be actually in the factor's pos- session, or only on their passage, makes no ditference ; the principal may countermand his order ; and though the property remain in the factor, till such countermand, yet from that moment the property revests in the principal, and he may maintain trover. But in the present case the plaintiffs are not that mere agent or servant ; they have advanced £.520 on the credit of those goods which at a ris- ing maiket were worth onh' £557, and they have besides, as I con- ceive, the legal property in the goods under the bill of lading. But it was contended at the bar, that the property never passed out of Turing ; and to prove it Hob. 41, was cited. In answer to this I must beg leave to say, that the position in Hobart does not apply ; because there no day of payment was given ; it was a bargain for ready monev ,• but here a month was given for payment. And in Noy's Maxims, 87, this is laid down: "If a man do agree for a price of wares, he may not carrj- them away before he hath paid for them, if he have not a day expressly given to him to pay for them." Thorpe v. Thorpe, Rep. temp. Holt, 96, and Brice v. James, Rep. temp. Ld. Mans- field, S. P. So. Dy. 30 and 76. And in Shep. Touch, 222, it is laid down, that if one sell me a horse or any other thing for money, or any other valuable consideration, and the same thing is to be deliv- ered to me at a day certain, and by our agreement a day is set foi the payment of the mone}', it is a good bargain and sale to alter the property thereof; and I may have an action for the thing, and the seller for his money. Thus stand the authorities on the point of legal property ; SECT. III.] LICKBAEEOW V. MASON. 583 and from hence it appears that for upwards of 100 years past it has been the universal doctrine of Westminster Hall that by a bill of lading, and by the assignment of it, the legal property does pass. And, as I conceive, there is no judgment nor even a dictum, if properly under- stood, which impeaches this long string of cases ; on the contrary, if any argument can be drawn by analogy from older cases on the vesting of property, they all tend to the same conclusion. If these cases be law, and if the legal property be vested in the plaintiffs, that, as it seems to me, puts a total end to the present case ; for then it will be incumbent on the defendants to show that they have superior equity which bears down the letter of the law, and which entitles them to retain the goods against the legal right of the plaintiffs, or they have no case at all. I find myself justified in saying that the legal title, if in the plaintiffs, must decide this cause by the very words of the judgment now appealed against ; for the noble Lord who pronounced that judgment emphatically observed iii it, '^ that the plaintiffs claim under Freeman ; but though they derive a title under him, they do not represent him, so as to be answerable for his engagements ; nor are they affected by any notice of those circumstances which would bar the claims of him or his assignees." This doctrine, to which I fully sub- scribe, seems to me to be a clear answer to any supposed lien which Turing may have on the goods in question for the original price of them. But the second question made in the cause is that, however the legal property be decided, the defendants, who stand in the place of the original owner, had a right to stop the goods in transitu^ and have a lien for the original price of them. Before I consider the authoi'ities applicable to this part of the case, I will beg leave to make a few obser- vations on the right of stopping goods m transitu, and on the nature and principle of liens. 1st. Neither of them are founded on property ; but they necessarily suppose the property to be in some other person, and not in him who sets up either of these riglits. They are qualified rights, which in given cases ma}- be exercised over the [)roperty of another ; and it is a contradiction in terras to say a man has a lien upon his own goods, or a right to stop his own goods in transitu. If the goods be his he has a right to the possession of them whetlier thej' be in transitu or not : he has a right to sell or dispose of them as he pleases, without the option of any other person : but he who has a lien only on goods has no right so to do ; he can onl}' retain them till the original price be paid ; and therefore if goods are sold for £500 and by a change of the market, before they are delivered, they become next day worth £1,000, the vendor can only retain them till the £500 be paid, unless tlie l)argain bo absohjtely rescinded by tlic vendee's refus- ing to pay the £500. 2dly. Liens at law exist only in cases where the party entitled to them has the possession of the goods ; and if he once part with the possession after the lien attaches, the lion is gone. 3dly. The right of stopping in transitu is founded wholly on equitable principles, which have been adopted in courts of law j and as far as 584 LICKBARKOW V. MASON. [CIIAP. IV. they have been adopted I agree the}' "will bind at law as well as in ciiiiity. So late as the year 1G90, this right, or privilege, or whatever it mav be called, was unknown to the law. The first of these propo- sitions is self-evident, and requires no argument to prove it. As to the second, which respects liens, it is known and unquestionable law, tliat if a carrier, a farrier, a tailor, or an inn-keeper, deliver up the goods, his lien is gone. So also is the case of a factor as to tlie par- ticular goods : but by the general usage in trade he may retain for tlie balance of his account all goods in his hands, without regard to the time when or on what account he received them. In Snee v. Prescot. Lord Hardwicke says, that which not only applies to the case of liens, but to the right of stopping goods in transitu under circumstances similar to the case in judgment ; for he says, where goods have been negotiated, and sold again, there it would be mischievous to say that the vendor or factor should have a lien upon the goods for the price ; for then no dealer would know when he purchased goods safeh'. So in Lempriere v. Pasley, 2 Term R. 485, the court said it would be a great inconvenience to commerce if it were to be laid down as law, that a man could never take up money upon the credit of goods con- signed till the\' actually- arrived in port. There are other cases which in my judgment apply as strongly against the right of seizing in transitu to the extent contended for b}' the defendants ; but before I go to them, with your Lordships' permission, I will state shortly the facts of the case of Snee v. Prescot, with a few more observations upon it. The doctrine of stopping in transitu owes its origin to courts of equit}' ; and it is ver}- material to observe that in that case, as well as many others waich have followed it at law, the question is not as the counsel for the defendants would make it, whether the property vested under the bill of lading ; for that was considered as being clear ; but whether, on the insolvency of the consignee, who had not paid for the goods, the consignor could countermand the consignment, or in other words divest the property which was vested in the consignee. Snee and Baxter, assignees of John Toilet v. Prescott and others, 1 Atk. 245. Toilet, a merchant in London, shipped to Ragueneau & Co., his factors at Leghorn, serges to sell,. and to buy double the value in silks, for which the factors were to pay half in ready money of their own, which Toilet would repay by bills di-awn on him. The silks were l)Ought accordingly, and shipped on board Dawson's ship, marked ''T. ;" Dawson signed three bills of lading, to deliver at London to factors, consignors, or their order. The factors indorsed one bill of lading in l)lank, and sent it to Toilet, who filled up the same and pawned it. The bills drawn by the factors on Toilet were not paid, but Toilet be- came a bankrupt. The factors sent another bill of lading, properl}' nidorsed, to Prescott, who offered to pay the pawnee, but he refused to deliver up the bill of lading ; on which Prescott got possession of the goods from Dawson, under the last bill of lading. The assignees of Toilet brought the bill to redeem by paying the pawnee out of the SECT. III.] LICKBAEEOW V. MASON. 585 money arising by sale, and to have the rest of the produce paid to them ; and that the factors, although in possession of the goods, should be considered as general creditors only, and be driven to come in under the commission. Decreed, 1st, that the factors should be paid ; 2d, the pawnees ; and 3d, the surplus to the assignees. The decree was just and right in saying that the consignor, who never had been paid for the goods, and the pawnees, who had advanced money upon the goods, should both be paid out of the goods before the consignee or his assignees should derive any benefit from them. That was the whole of the decree ; and if the circumstance of the consignor's interest being first provided for be thought to have any weight, I answer, 1st, That such provision was founded on what is now admitted to be an apparent mistake of the law, in supposing that there was a diflerence between a full and a blank indorsement. Lord Hardwicke considered the legal property in that case to remain in the consignor, and therefore gave him the preference. 2dly, That wiiatever might be the law, the mere fact of the consignor's being in possession was a sufficient reason for a court of equity to say, we will not take the possession from you till you have been paid what is due to you for the goods. Lord Hardwicke expressly said, this court will not say, as the factors have re-seized the goods, that they shall be taken out of their hands till payment of the half price which they have laid down upon them. He who seeks equity must do equity ; and if he will not, he must not expect relief from a court of equity. It is in vain for a man to say in that court, I have the law with me, unless he will show that he has equity with him also. If he mean to rely on the law of his case, he must go to a court of law ; and so a court of equity will always tell him under those circumstances. The case of Snee v. Prescot is miserably reported in the printed book : and it was the misfortune of Lord Hardwicke, and of the public in general, to have many of his determinations published in an incorrect and slovenly way ; and perhaps, even he himself by being very diffuse has laid a foundation for doubts which otherwise would never have ex- isted. I have quoted that case from a MS. note taken, as I collect, by Mr. John Cox, who was counsel in the cause ; and it seems to me that on taking the whole of the case together, it is apparent that whatever might have been said on the law of the case in a most elaborate opin- ion, Lord Hardwicke decided on the equity alone arising out of all the particular circumstances of it, without meaning to settle the principles of law, on which the present case depends. In one part of his judg- ment he says, that in strictness of law the property vested in Toilet at the time of tlie purchase ; but however that may be, says he, this court will not compel the factors to deliver the goods without being disbursed wluit tliey have laid out. He begins by saying, the demand is as harsh as can possibly come into a court of equity. And in another part of his judgment he says, suppose the legal property in these goods was vested in tlie bankrupt, and that the assignees had recovered, yet tliis court would not suffer them to take out execution for the whole 586 LICKBAEROW V. MASON. [CHAP. IV. value, but would oblige them to account. But further, as to the right of seizing or stopping the goods in transitu, I hold that no man who has not equit}' on his side can have that right. I will say with con- fidence, that no case or authority till the present judgment can be pro- duced to show that he has. But on the other hand, in a very able judgment delivered by my brother Ashhurst in the case of Lempriere v. Pasley, in 1788, 2 Term Rep. 485, he laid it down as a clear prin- ciple that as between a person who has an equitable lien, and a third person who purchases a thing for a valuable consideration and without notice, the prior equitable lien shall not overreach the title of the ven- dee. This is founded on plain and obvious reason ; for he who lias bought a thing for a fair and valuable consideration, and without notice of any right or claim by any other person, instead of having equity against him has equity in his favor; and if he have law and equity both with him, he cannot be beat by a man who has equal equity only. Again, in a very solemn opinion delivered in this house by the learned and respectable judge who has often had the honor of delivering the sentiments of the judges to your Lordships when you are pleased to require it, so lately as the 14th May, 1790, in the case of Kinloch i: Craig, 3 Term R. 787, it was laid down that the right of stopping goods i/i transitu never occurred but as between vendor and vendee , for that he relied on the case of Wright v. Campbell, 4 Burr. 2050. Nothing remains in order to make that case a direct and conclusive authority for the present, but to show that this is not the case of ven- dor and vendee. The terms vendor and vendee necessarily mean the two parties to a particular contract : those who deal together, and be- tween whom there is a privity in the disposition of the thing about which we are talking. If A sell a horse to B, and B afterwards sell him to C, and C to D, and so on through the alphabet, each man who buys the horse is at the time of buying him a vendee ; but it would be strange to speak of A and D together as vendor and vendee ; for A never sold to D, nor did D ever buy of A. These terms are cor- relatives, and never have been applied, or ever can be applied in any other sense than to the persons who bought, and sold to, each other. The defendants, or Turing, in whose behalf, and under whose name and authority they have acted, never sold these goods to the plaintiffs ; the plaintiffs never were the vendees of either of them. Neither do the plaintiffs (if I may be permitted to repeat again the forcible words of the noble judge who pi'onounced the judgment in question) represent Freeman, so as to be answerable for his engagements, or stand affected by any notice of those circumstances which would bar the claim of Freeman or his assignees. These reasons, which I could not have expressed with equal clearness without recurring to the words of the two great authorities by whom they were used, and to whom I always bow with reverence, in my humble judgment put an end to all questions about the right of seizing in transitu. Two other cases were mentioned at the bar which deserve some attention. One is the case of the assignees SECT. III.] LICKBAEROW V. MASON. 587 of Burghall v. Howard, 1 H. Blac. 365 n., before Lord Mansfield at Guild- bail ill 1759, where the only point decided by Lord Mansfield was, that if a consignee become a bankrupt, and no part of the price of the goods be paid, the consignor ma}' seize the goods before they come to the hands of the consignee or his assignees. This was most clearly right ; but it does not apply to the present case : for when he made use of the word assignees, he undoubtedl}' meant assignees under a commission of bankrupt, like those who were then before him, and not persons to whom the consignee sold the goods. For in that case it is stated that no part of the price of the goods was paid. The whole cause turns upon this point. In that case no part of the price of the goods was paid, and therefore the original owner might seize the goods. But in this case the plaintiffs had paid the price of the goods, or were under acceptances for them, which is the same thing ; and therefore the origi- nal owner could not seize them again. But the note of that case says, Lord Mansfield added, "and this was ruled, not upon principles of equity only, but the laws of property." Do these words fairly import that the property was not altered by a bill of lading, or by the indorse- ment of it ? That the liberty of stopping goods in transitu is originally founded on principles of equity, and that it has, in the case before him, been adopted by the law, and that it does affect property, are all true ; and that is all that the words mean ; not that the property did not pass by the bill of lading. The commercial law of this country was never better understood, or more correctly administered than b}' that great man. It was under his fostering hand that the trade and the commercial law of this country grew to its present amazing size ; and when we find him in other instances adopting the language and opinion of Lord C. J. Holt, and sa3'ing that since the cases before him it had always been held that the delivery of a bill of lading transferred the property at law, and in the year 1767 deciding that very point, it docs seem to me to be absolutely- impossible to make a doubt of what was his opinion and meaning. All his determinations on the subject are uniform. Even the case of Savignac v. Cuff, of wliich we have no account, be- sides the loose and inaccurate note produced at the bar, as I understand It, goes upon the same principle. The note states that the counsel for the plaintiff relied on the property passing by the bill of lading ; to which Lord Mansfield answered, the plaintiff' has lost his lien, he stand- ing in the place of the consignee. Lord Mansfield did not answer mer- cantile questions so : which, as stated, was no answer to the question made. I>ut I think enough appears on that case to show the grounds of the decision, to make it consistent with the case of Wright and Camp- bell, and to prove it a material authority for the plaintiffs in this case. I collect from it that the plaintiff had notice by the letter of advice that Linghain had not paid for the goods ; and if so, then, according to the case of Wright v. Campbell, he could only stand in Lingham's place. But the necessity of recurring to the question of notice strongl}' proves that if there had been no such notice, the plaintiff, who was the assignee IjSS LICKBARROW v. mason. [CHAr. IV. of Lingham the consignee, would not have stood in Lingbam's place, and the consignor could not have seized the goods in transitu ; but that, having seized them, the plaintiff would have been entitled to recover the full value of them from him. This wa}' of considering it makes that case a direct authority in point for the plaintiffs. There is another circumstance in that case material for consideration, because it shows how far onl}' the right of seizing in transitu extends as between the consignor and consignee. The plaintiff in that action was con- sidered as the consignee ; the defendant, the consignor, had not re- ceived the full value for his goods, but the consignee had paid £150 on account of them. Upon the insoh'cncy of the consignee the consignor seized the goods in transitu^ but that was holden not to be justifiable, and therefore there was a verdict against him. That was an action of trover, which could not have been sustained but on the ground that the property was vested in the consignee, and could not be seized in transitu as against him. If the legal property had remained in the consignor, what objection could be stated in a court of law to the consignor's taking his own goods? But it was holden that he could not seize the goods ; which could onlj' be on the ground contended for b}' Mr. Wal- lace, the counsel for the plaintiff, that the property was in the consignee. But though the property were in the consignee, yet, as I stated to your Lordships in the outset, if the consignor had paid to the consignee all that he had advanced on account of the goods, the consignor would have had a right to the possession of the goods, even though they had got into the hands of the consignee ; and upon paying or tendering that money and demanding the goods the propert}' would have revested in him, and he might have maintained trover for them. But admitting that the consignee had the legal propert}', and was therefore entitled to a verdict, still the question remained what damages he should recover. And in ascertaining them regard was had to the true merits of the case, and the relative situation of each part}'. If the consignee had obtained the actual possession of the goods, he would have had no other equitable claim on them than for £150. He was entitled to no more ; the defend- ant was lial)le to pay no more ; and therefore the verdict was given for that sum. This case proceeded precisely upon the same principles as the case of "Wiseman y. Vandeput ; where, though it was determined that the legal property in the goods, before the}' arrived, was in the consignee, yet the Court of Chancer}- held that the consignee should not avail himself of that bej-ond what was due to him. But for what was due, the court directed an account; and if anything were due from the Italians to the Bonnells, that should be paid the plaintiffs. The plaintiffs in this cause are exactly in the situation of the plaintiffs in that case ; for they have the legal property in the goods ; and therefore if anything be due to them, even in equit}', that must be paid before any person can take the goods from them ; and £520 was due to them, and has not been paid. After these authorities, taking into consideration also that there is no case whatever in which it has been holden that SECT. III.] LICKBAPtROW V. MASON. 589 goods can be stopped in transitu after thej have been sold and paid lor, or money advanced upon them bona fide, and without notice, I do not conceive that the case is open to any arguments of policy or con- venience. But if it should be thought so, I beg leave to say, that in all mercantile transactions one great point to be kept uniformly in view is to make the circulation and negotiation of propert}' as quick, as easy, and as certain as possible. If this judgment stand, no man will be safe either in buying, or in lending money upon goods at sea. That species of property will be locked up ; and many a man, who could support him- self with honor and credit if he could dispose of such property to supply a present (Jccasion, would receive a check, which industr}', caution, or attention could not surmount. If the goods are in all cases to be liable to the original owner for the price, what is there to be bought? There is nothing but the chance of the market, and that the buyer expects as his profit on purchasing the goods, without paying an extra price for it. But Turing has transferred the property to Freeman, in order that he might transfer it again, and has given him credit for the value of the goods. Freeman having transferred the goods again for value, I am of opinion that Turing had neither property, lien, or a right to seize in transitu. The great advantage which this countr}- possesses over most if not all other parts of the known world, in point of foreign trade, con- sists in the extent of credit given on exports, and the ready advances made on imports. But amidst all these indulgences the wise merchant is not unmindful of his true interests and the securit}- of his capital. I will beg leave to state, in as few words as possible, what is a \evy frequent occurrence in the cit}' of London. A cargo of goods of the value of £2,000 is consigned to a merchant in London ; and the moment the}' are shipped the merchant abroad draws upon his correspondent here to the value of that cargo ; and by the first post or ship he sends him advice, and incloses the bill of lading. The bills, in most cases, arrive before the cargo ; and then the merchant in London must resolve what part he will take. If he accept the bills, he becomes absolutely and unconditional!}' liable ; if he refuse them, he disgraces his correspondent, and loses his custom directly. Yet to engage for £2,000 without any security from the drawer is a bold measure. The goods may be lost at sea ; and then the merchant here is left to recover his money against the drawer as and when he may. The question then with the merchant is, how can I secure myself at all events? The answer is, I will insure, and then if the goods come safe I shall be repaid out of them, or if they be lost, I shall be repaid by the under- writers on the policy. But this cannot be done unless the property vest in him by the bill of lading ; for otherwise his policy will be void for want of interest. And an insurance in the name of tiie foreign merchant would not answer the purpose. This is the case of the mer- chant who is wealthy, and has the £2,000 in his banker's hands, which he can part with, and not find any inconvenience in so doing. But there is another case to be considered, viz. : Suppose the merchant here 590 LICKBAKROW V. MASON. [CHAP. IV. Las noi got the £2,000, and caLnot raise it before he has sold the goods? the same considerations arise in his mind as in the former case, with this additional circumstance, that the money must be procured before the bills become due. Then the question is, how can that be done? If he have tlie property in the goods, he can go to market with the bill of lading and the polic}', as was done in Snee and Prescot ; and upon that idea he has hitherto had no difficulty in doing so. But if he have not the property, nobod}' will buy of hira, and then his trade is undone. But there is still a third case to be considered ; for even the wary and opulent merchant often wishes to sell his goods whilst they are at sea. I will put the case, by way of example, th»t barilla is shipped for a merchant here at a time when there has been a dearth of that commodit}', and it produces a profit of £25 per cent, whereas upon an average it does not produce above £12. The merchant has advices that there is a great quantity of that article in Spain intended for the British market, and when that arrives the market will be glutted, and the commodity much reduced ni value. He wishes therefore to sell it immediatel}', whilst it is at sea, and before it arrives, and the profit which he gets by that is fair and honorable ; but he cannot do it if he have not the property by the bill of lading. Besides a quick circula- tion is the life and soul of trade ; and if the merchant cannot sell with safety to the buyer, that must necessarily be retarded. From the little experience which I acquired on this subject at Guildhall, I am confident that if the goods in question be retained from the plaintifl[" without repaying him what he has advanced on the credit of them, it will be mischievous to the trade and commerce of this country ; and it seems to me that not onlj' commercial interest, but plain justice and public policy forbid it. To sum up the whole in very few words, the legal property was in the plaintiff : the right of seizing in transitu is founded on equity : no case in equit}' has ever suffered a man to seize goods in op[)osition to one who has obtained a legal title, and has advanced money upon them ; but Lord Hardwicke's opinion was clearl}' against it : and the law, where it adopts the reasoning and principle of a court of equity, never has and never ought to exceed the bounds of equity itself. I offer to your Lordships as my humble opinion, that the evi- dence given by the plaintiff, and confessed by the demurrer, is sufficient in law to maintain the action. AsHHURST and Grose, Justices, also delivered their opinions for reversing the judgment of the Exchequer Chamber. Eyre, C. J., Gould, J., Heath, J., Hotham, B., Perryn, B., and Thomson, B., contra. A venire facias de novo having been awarded by the King's Bench, a special verdict was found upon the second trial, containing in substance the same facts as before. And then the jury found that by the custom of merchants, bills of lading, expressing goods or merchandises to have been shipped by any SECT. III.] BOHTLINGK V. INGLIS. 691 person or persons to be delivered to order or assigns, have been, and are, at any time after sucli goods have been shipped, and before the voyage performed, for which the}' have been or are shipped, negotiable and transferable by the shipper or shippers of such goods to any other person or persons, by such shipper or shippers indorsing gvich bills of lading with his, her, or their name or names, and dehvering or trans- mitting the same so indorsed, or causing the same to be so delivered or transmitted to such other person or persons ; and that by such indorse- ment and delivery or transmission, the property in such goods hath been, and is transferred and passed to such other person or persons. And that, by the custom of merchants, indorsements of bills of lading in blank — that is to say, by the shipper or shippers with their names only — have been, and are, and may be filled up by the person or persons to whom they are so delivered or transmitted as aforesaid, with words ordering the deliver}' of the goods or contents of such bills of lading to be made to such person or persons ; and, according to the practice of merchants, the same, when filled up, have the same operation and effect as if the same had been made or done by such shipper or shippers when he, she, or they indorsed the same bills of lading with their names as aforesaid. But whether, &c. The Court, understanding that it was intended that this case was to be carried up to the House of Lords, declined entering into a discussion of it, merely saying that they still retained the opinion delivered upon the former case. And they accordingly gave Judgment for the plaintiffs. BOHTLINGK v. INGLIS. In the King's Bench, February 11, 1803. [Reported in 3 East, 381.] Lawrence, J., delivered the judgment of the court (Grose, Lb Blanc, and Lawrence, JJ.) The circumstances of the case as applicable to this point are shortly these: Crane, the bankrupt, a merchant in London, entered into an agreement with Usherwood, the master of a ship, for that ship going to Petersburg, and there receiving from the factors of the bankrupt a quantity of merchandise of various descriptions, and proceeding from thence to London, in consideration of certain freight to be paid per ton, half on the unloading, and the remainder in three montlis ; for which goods the master was to sign tlie usual bills of lading, and Crane was fully to load the ship. In consequence of this agreement the ship sailed to Petersburg, and was loaded by l^)Ohtlingk & Co. on the account and risk of Crane ; and one part of the bill of lading directing the goods to be delivered to Crane or his assigns was sent to him ; the 692 BOHTLINGK V. INGLIS. [ciIAr. IV. other part, in consequence of the plaintiff's having information of Crane's insolvency, was afterwards sent to Mr. Schneider their agent, with directions not to deliver that part to Crane, unless he gave suffi- cient security for the amount of the goods. And the plaintiffs at the same time that they sent this part of the bill of lading to Schneider, informed Crane of their having so done, and required him, in case he did not give the security, to deliver to Schneider the bill of lading that had been sent to him, Crane. In fact Crane had become a bankrupt before tlie goods were delivered on board the ship in Russia, but after their purchase ; and on the arrival of the ship in the Thames, Schneider demanded the goods of the master, who refused to deliver them to him, and delivered them to the defendants. For the benefit of trade a rule has been introduced into the common law, enabling the consignor in case of the insolvency of the consignee to stop the goods consigned before the}- come into the possession of the consignee; which possession Mr. Justice Buller, in Ellis v. Hunt, sa3-s means an actual possession. That the possession of a carrier is not such a possession has been repeatedly determined ; and the ques- tion now is, whether the possession of the master be anything more than the possession of a carrier, and not the actual possession of the bankrupt. And to this, it appears that Usherwood, the master, con- tracted with the bankrupt to proceed from hence to Petersburg, and to bring in his ship a cargo of goods, which Crane engaged should amount to the tonnage of the ship ; which does not differ from a similar contract entered into b}' the consignor by the directions of the con- signee at the loading port, for the conveyance of the goods from him to the vendee : in which case it would hardly be contended that a deli- very b}- the consignor to the master of the ship for the purpose of carriage would be such a delivery to the vendee as to prevent the right of stoppage in transitu. In each case the freight would be to be paid by the consignee; in each case the ship would be hired by him; and there would be no difference, except that in this case the ship in con- sequence of the agreement goes from England to fetch the cargo ; in the other case the vessel would bring it immediateh' from the loading port: botli in the one case and in the other the contract is with the master for tlie carriage of goods from one place to another ; and until the arrival of the goods at their port of destination and delivery to the consignee, thei/ are in their passage or transit from the consignor to the consignee. If a man contract with the owner of a general ship to take goods, which are equal to half the tonnage of the ship, and the master complete the loading of his ship with the goods of others, there would be no question but that there might be such stoppage ; and surely it will not be said that the right of stoppage depends on the quantit}' of the goods consigned. In support of the defendant's claim the case of Fowler v. M'Taggart, 1 East. 522, has been relied on. The more proper name of that case is Fowler v. Kyraer et al. , which was tried before Mr. Justice Grose at Bristol ; but that case is very distinguishable SECT. III.] BOHTLINGK V. INGLIS. 693 from this. There the bankrupts Hanter & Co. were in possession of a ship let to them for a term of three years, at £52 lO*-. per month, they finding stock and provisions for the ship, and paying the master ; during which time they were to have the entire disposition of the ship and the complete control over her. The ship had been one voyage to Alexandria, and had the goods put on board of her, to carry them on another voy- age to the place; not for the purpose of conveying them from ilae plaintiffs to the bankrupts, but that they might be sent by the bank- rupts upon a mercantile adventure, for which they had bought them. There the delivery was complete ; and the facts of that case differ widely from this, where Crane had no control over the ship, and had merely contracted with the master to employ his ship in fetching goods for him. The case of Stokes v. La Riviere and Lawley, 3 T. R. 466, is much stronger than this. The plaintiff being a ribbon-weaver, Messrs. Duhem of Lisle who had just arrived in London applied to him for a quantity of ribbons, who on a favorable account by the defendants of their circum- stances packed up goods to the amount of £186 8s. del, and delivered them to the defendants to be forwarded to Lisle. These goods, with others purchased in like manner of Twigge, Ellis, & Edwards, gauze-weavers, to the amount of £650, were forwarded on or about the 12th of May to Messrs. Bine & Overman, the defendants' correspondents at Ostend, with directions to send them to the order of Messrs. Duhem. On the receipt of which goods, viz. on the 29th of May, Bine & Overman wrote to Duhems an acknowledgment, and that they waited their direc- tions. On the 12th of June the Duhems stopped pa^-ment ; and by an instrument signed the 13th of August consented to Twigge's taking back his gauzes, amounting to £419 18,s-. 2hd. But not having ful- filled some engagement with the defendants, and being considerably indebted to them, the defendants countermanded the orders they had given to Bine, Overman, & Co., as to the delivery of the goods, by letter of the 31st of Maj-, and directed them to alter the marks, and to deliver them to their order ; which was accordingly done, and the}' were afterwards disposed of in satisfaction of the defendants' demand : they contending that immcdiatel}' upon the delivery of the goods b)' the plaintiff to them, the property vested in Messrs. Duhem, and that they, the defendants, had a right to retain them. This cause was tried at Guildhall on Saturday, the 18th of December, 1784, when Lord Mansfield said: "The fact I take to be this: The Duhems bought goods of the plaintiff, which were ordered to be delivered to the defendants to be shipped to Duhems, who are since become insolvent, after the goods were sent to a factor at Ostend. The defendants who have got them back again stand as they originally did. No point is more clear than that if goods are sold, and the price not paid, the seller may stop them in transitu ,' Itnean in erery sort of passage to the hands of the buyers. There have been a hundred cases of this sort. Ships in harbor, carriers, bills have been stopped. Li short, where the goods 594 BOHTLINGK V. INGLIS. [CIIAP. IV. are in transitu the seller has that propi'ietary lien. The goods are in the hands of the defendants to be conveyed; the owner may get them back again. The case of Inghs and Usherwood, 1 East. 515, is perfectly consistent with the opinion we have formed. That case did not decide, as was sup- posed in the argument, that the transit was complete on the deliver}' of tlie goods on board the ship ; for it was determined on the ground that the Russian laws authorized the taking of the goods, evenif the delivery had been complete. In that case Lord Kenyon says: "Giving tlie plaintiff the full benefit of the argument that the delivery of the goods on board a chartered ship was a delivery to the banki-upt, still the Russian ordinance takes it out of the rule." Mr. Justice Grose uses more general expressions, from whence it may be inferred that he con- sidered the ship as one, a delivery on board of which was a delivery to the defendant ; but that it was not the true way in which his opinion is to be understood. The case of Fowler v. Kymer and M'Taggart had been cited, in reference to which he was speaking : and he is not to be taken as laying down any proposition beyond what was established by that case ; and supposing the deliveiy to be similar to that in Fowler v. Kj-raer, he took the same ground that Lord Kenj'on did, and decided that, notwithstanding such delivery, the goods bj^ the law of Russia were in transitu. In the account of wliat I am stated to have said, I observe that, without naming the case, I recognized the authorit}' of Fowler v. Kymer to the extent that case goes ; namely, that if one purchase goods here to be sent abroad, and they are delivered on board a chartered ship in a port of this kingdom, such delivery is in effect a delivery to the vendee : and I gave it as mj- opinion, that if the delivery in the case then before us were a delivery, which in this country would have been a delivery- to the vendee, still, according to the laws of Russia, the goods might be stopped. And my brother Le Blanc's opinion goes entirely on the laws of Russia ; without inquir- ing how far the case then before the court was distinguishable from those cited in any other respect. For these reasons I am of opinion that the^pos^ea should be delivered to the plaintiffs; in which opinion m}' brothers Grose and Le Blanc concur. In the view we have of the subject it is not necessar}' to sa\' anything on the other point, as to the admissibility in evidence of the opinion of the judges of the Russian custom-house ; with respect to which we form no opinion. Posted to the plaintiffs} 1 The statement of the case and a portion of the opinion are omitted. SECT. III.] SPALDING V. KUDING. 595 SPALDING V. RUDING. In Chancery, coram Lord Langdale, March 24, 25, July 8, 1843. [Reported in 6 Beavan, 376.] The plaintiffs were merchants residing at Stralsund. On the 17th of Ma}-, 1841, their agent, Mr. Schleicher, on their behalf, sold to James Williams Thomas a quantity of wheat at 355. per quarter, free on board, the siiipment to be made forthwith to London, at the current rate of freight, and the amount to be drawn for on Thomas at three months' date, payable in London, on handing invoice and bill of lading. The plaintiffs accordingly, on the 1st of June, 1841, shipped at Stral- sund, hy the ship "Ceres," 714 quarters of wheat ; a bill of lading was signed by Zillmer, the master of the ship, in the usual form ; and the plaintiffs, having made out and signed an invoice of the wheat, sent the same with the bill of lading to Thomas, and, at the same time, drew upon him three bills for the amount in the whole of £1,264 2s. ; and by letter requested Thomas to protect those bills. Thomas received the bill of lading and invoice on the 8th of June, 1841, and he thereupon requested Ruding to accept for him a bill of exchange for £1,000, payable at three months after date, which Ruding agreed to do on receiving from Thomas a memorandum or letter signed by Thomas to this effect : — London, 9th June, 1841. Messrs. J. C. Ruding and Son. Gentlemen, — In consideration of your having this day accepted m}- draft on you at three months' date for £1,000 on a cargo of wheat (viz. 3,825 scheffels), from Stralsund per the "Ceres," J. H. Zillmer, of which I have handed ^'ou the policy of insurance for £1,G00 and a bill of lading, I authorize you to dispose of the same on my account, subject to your usual commission and charges, before such bill becomes due ; or, I undertake to provide you with cash to the amount of your advance, should I wish you to hold it beyond that time. James W. Thomas. On the 1st of July, 1841, the ship "Ceres," with the wheat on board, arrived in the port of London. About this time, Mr. Thomas stop[)ed payment. On the 2d of Jul}', Schleicher, tlie agent of the plaintiffs, gave a verbal notice, and on the 3(1 of Jul}', a written notice to Zillmer, the master of the "Ceres," not to part with the wheat, without the orders of the plaintiffs. On the 5th of July, a fiat of bankruptcy was issued against Thomas, and on the same day Schleicher again gave notice to the master not to part with the wheat, but being then informed 696 SPALDING V. liUDING. [CIIAP. IV. that the bill of lading had been '.ndorscd and delivered to Ending as a security for moneys' lent, he permitted the wheat to be delivered to Ending, but on the same day gave him notice that the plaintiffs claimed to be entitled to the wheat and the proceeds thereof, and did not, by removing the stop placed upon the delivery to Ruding, abandon their claim, and that in case Ending should be entitled by law to any part of such proceeds, the plaintiffs claimed the balance which should remain after satisfying such claim, if any, as Ruding might by law have. Euding claimed to be entitled to apply the proceeds of the wheat, not only in payment of the ^1,000 bill which he had accepted, and the freight and other charges of the shipment, but also in satisfaction of the balance of a general account which he alleged to be subsisting between himself and Thomas. Under these circumstances, the plaintiffs offered to pay him £1,200 in satisfaction of his acceptance and the charges on the wheat, and requested to have the wheat thereupon delivered to them. This was on the 23d of July. Mr. Euding refused to accept the money offered to him, or to deliver up the wheat, and he afterwards, on the 21st of August, 1841, sold it for £1,822, which he retained to his own use. Having subsequently, in December, 1841, declined to acknowledge that tlie plaintiffs had any claim whatever', this bill was filed on the 31st of December, 1841. The bill prayed that an account might be taken of the moneys which had come to the hands of the defendant Euding, in respect of the wheat, and also of the moneys due to the same defendant on the security of the bill of lading. That the defendant might be allowed such last-mentioned moneys, and might pay to the plaintiffs the balance of the moneys arising from the wheat. Mr. Peynberton Leigh and Mr. Wood, for the plaintiffs. Mr. G. Turner and Mr. Fisher, for the defendant, Euding. Mr. liichner, for the assignees of Thomas. The Mastek of the Eolls. I apprehend it to be clear, that the. indorsement and delivery of the bill of lading by Thomas, the consignee, to Euding for valuable consideration, gave to Euding the legal right to the delivery and possession of the goods. That right is not disputed by this bill, but the plaintiffs insist that under the contract subsisting between Thomas and Euding, the right to the possession of the goods was vested in Euding, only as a security for the repayment to him of his advance and charges, and that, subject to that security, the plaintiffs, in the consideration of a court of equity, retained their right to a stop- page in transitu against the assignee or indorsee of the bill of lading ; it appears that in the case of Westzinthus, 5 B. «& Adol. 817, the Cour<. of Queen's Bench held, that in such a case a court of equity would hold such a transfer to be a pledge or mortgage only, and that the attempt to stop in transitu gave a right to the goods, in equity, subject only to the lien for the advance. The propriety of that opinion was questioned, but, as it appears to SECT. III.] BERNDTSON V. STRANG. 597 me, without sufficient reason. As against Ttiomas, I tliink that the plaintiffs had a right to stop the goods in transitu; and, although the legal right to the goods was transferred with the bill of lading, yet I think that, in equity, the transler took effect only to the extent of the consideration paid by the transferee, leaving in the plaintiff's an equitable interest in the surplus value. In the argument for the defendants it was urged that they, in the character of factors for Thomas, had an interest of their own to retain the surplus value in satisfaction of a balance due to them from Thomas ; and, secondly, that any interest of the plaintiffs, though of an equitable nature, might be made available in an action to be brought by them against the defendants in this cause ; but the goods came to the hands of Ruding under a special contract, interfering with any general right which he might have as factor ; and, even if the defendants were entitled to be considered as factors of Thomas, having a balance due to them, it does not appear to me that, as against the plaintiffs, the owners and shippers of the goods entitled to stop in transitu, they could, by virtue of the bill of lading, have a right to retain more than the consideration they paid for the advantage which the bill of lading gave them; and, as to the action, the legal right to the goods being clearly in the defend- ants, it does not appear to me that the plaintiffs could have obtained, at law, that relief which I think them entitled to here. I am therefore of opinion that the plaintiffs are entitled to the decree which is asked by the bill, and that an account must be taken of the moneys received by the defendants in respect of the wheat in question, and of the moneys due to the defendants on the security of the bill of lading, and that the balance may be ascertained and paid to the plaintiffs by the defendants,^ BERNDTSON v. STRANG. In Chancery, June 27, 28, July 2, 1867. [Reported in Law Reports, 4 Equity, 481.] This was a suit for the purpose of establishing the right of the plain- tiff, by virtue of the exercise of his right of stoppage in transitu, to a charge in equity upon the proceeds of certain timber sold l)y him to a firm in London, of whom the defendants were the assignees under a deed for the benefit of creditors. 1 This decision was affirmed by Lord Lvndliurst, 15 I.. J. (Ch.) 374. Chandler r. Fulton, 19 Tex. 2, ace. In Missouri Pacific Ry. Co. v. Ileidenheimer, 82 Tex. 195, 199, however, Tarlton, J., delivering the opinion of the court, said : "If the transfer of a bill of lading by way of pledge or mortgage, or a.s ctdlateral .security for a loan, does not absolutely defeat the right of stoppage in transitu, the seller cannot exert that right until he has discharged the debt secured by the transfer, as his right is subject to that of the mortgagee or pledgee." 598 BERNDTSON V. STRANG. [CHAP. IV. The facts, which were not in dispute, were thus stated upon the bill : — The plaintiff, wlio is a timber merchant of Gefle, in Sweden, through his Paris agent, Charles Von Kock, entered into a contract in February, 1863, for the sale to Messrs. Langton & Robinson, a London firm, of a quantity of timber. The contract, which was reduced into writing, and signed by Messrs. Langton & Robinson, after stating the quantities of timber and the prices, proceeded thus : — " And the said prices, franco on borcl, payable by bu\-er's acceptance of seller's drafts at six months from date of bills of lading. Shipment to London. Sellers to provide ships to a freight not exceeding 53s. in full, per Petersburgcr standard, with two or thi'ee guineas of gratifica- tion per 100 Petersb. stand, in case of need. If ships cannot be char- tered within this limit, the contract to be void." It was subsequently agreed that, instead of Berndtson providing a ship for conveyance of the timber, Langton & Robinson should them- selves charter a vessel to convey the timber from Gefle to London. Messrs. Langton & Robinson accordingly chartered a ship, the "Maastrom," which proceeded to Gefle, and on the 22d of October, 1863, Berndtson shipped the timber on board of her. The price of the timber amounted to £1,589 12s. Qd., and an advance of £153 8s. 2d. was made by Berndtson to the captain of the ship on account of the freight. These sums, together with three months' interest at 5 per cent on the advance, amounted to £1,744 19s., and according!}-, in pursuance of the contract, Berndtson, on the 22d of October, 1863, drew a bill of exchange of that date for this amount upon Langton & Robinson, pay- able six months after date. At the same time, in order, as the bill alleged, to preserve his control over such timber, Berndtson caused the bill of lading to be drawn in his name as shipper of the timber, and the same was thereby made deliverable to the order or assigns of Berndtson dated 22d of October, 1863, and made the timber deliver- able to Berndtson's order or assigns.^ Berndtson indorsed this bill of lading in blank, and caused it to be handed over to Langton & Robinson, in exchange for their acceptance of the bill of exchange for £1,744 19s. On receipt of the bill of lading Messrs. Langton & Robinson deposited it, together with a policy of insurance of the cargo of timber and other securities, with Messrs. Churchill & Sim, as a security for repayment of moneys due to them from Langton & Robinson. The " Maastrom," with the timber on board, sailed for London, but met with disasters on her voyage, got stranded, and on the 16th of November, 1863, was forced in distress to put into the port of Copen- hagen, where she remained for some months. On the 16th of February, 1864, Langton & Co. suspended payment, and subsequentlj', on the Pth 1 In the report the bill of lading is given verbatim. SECT. III.] BERNDTSON V. STKANG. 599 of September, 1864, they executed a deed of assignment to the defend- ants, Strang, Sieveking, and Pack, as trustees for the benefit of their creditors. While the " Maastrom " was still lying in the port of Copen hagen, Berndtson caused the captain to be served with a notice, dated the 24th of March, 1864, to stop the timber in transitu. On the 26th of April, 1864, the "Maastrom" arrived in the Thames, whereupon a second notice of stoppage in transitu was served on board the ship and also on the shipbrokers, and on Messrs. Churchill & Sim. The timber was taken possession of by Churchill & Sim as mort- gagees, and a sum of £1,276 15s. 6c?. was produced by the sale of it. The proceeds of the timber, with the moneys received under the policy, amounting in all to £1,570, had been paid into court by Messrs. Churchill & Sim, who had been satisfied out of their other securities. The bill of exchange for £1,744 195. was dishonored at maturit}'. The proceeds of the timber having been claimed by the trustees of the creditors' deed executed by Langton & Robinson, this bill was filed by Berndtson, charging that, by the exercise of his right of stopping the timber in transitu, he was entitled in equity to a valid and subsistino- charge for the money due in respect of the price of the timber, and praying relief upon this footing. A dividend of 5s. in the pound on the whole amount of his claim on the estate had been paid to the plaintiff' by the trustees of the creditors' deed without prejudice. 3Ir. G. M. Giffard, Q. C, and 3Ir. Karj, Q. C, for the plaintiflT. 31r. Druce, Q. C, and Mr. FreeUarj, for the defendants. Sir W. Page Wood, V. C. The question in this case is, whether the plaintiff is entitled to such a declaration as was made in Spaldino- v. Ruding, 6 Beav. 376, of his equitable right of stoppage in transitu over certain timber sold by him, and for the price of which bills of exchange were drawn, which were unpaid at the time tlie consignees became ni- solvent : the question being whether, under all the circumstances of the case, the consignees having simply mortgaged the bills of lading, which brings the case so far within Spalding v. Ruding, the plaintiff is entitled to the surplus assets as against the defendants, who are tlie representa- tives, under a deed of composition, of the original consignees. Spalding v. Ruding was, I think, the first case in this court in which this right was asserted as against property which had so far passed into the hands of the consignee tiiat he was enabled by mortgage of the bills of lading to pass the interest in the goods to the extent of that mort- gage ; and there the right of stoppage in transitu was upheld as against the surplus. The case, which was originally decided by Lord Langdale, and affirmed by Lord Lyndhurst, was no doubt, in some degree, an exten- sion of what was supposed to be the right of the consignor. In some of the cases there were dicta which seemed to show that by the indorse- ment of the bill of lading in such a manner as to admit of a dealing 600 BERNDTSON V. STRANG. [CHAP. IV. with it, and by actual dealing with, or actual negotiation of such bill of huling lo a bona fide transferee, the vendor's right to stop in transitu would be defeated. That was the great ground of argument in Spal- ding V. Ruding, supra, and I mention the case as showing the extent to which the right has been upheld, and that it is a right entirely dislinguislied from tlie right of property in the goods. Tlie plaintiff in this case sold to Messrs. Langton, who have become insolvent, certain timber under a contract of sale, specifying the price, " free on board, payable bj' buyer's acceptance of seller's drafts at six months from date of bills of lading. Shipment to London." It was also provided that the sellers were to provide ships. A good deal was said about these words " free on board," but as regartls the original contract it would be plain enough that there wag no intention that the goods should be at their destination when they were free on board, as not only was London the place of destination, but the seller was to find the vessel, and undertook that the goods sliould be delivered in London. Although the property in the goods might well pass when the bill of lading was handed over in exchange for the accepted bills, still that does not determine the question as to the right to stoppage in transitu, the distinction being well established upon all the authorities, and especially referred to in Van Casteel v. Booker, where, during tlie argument, Mr. (now Baron) Martin, so far conceding against the interest of his client, saj's (2 Ex. 699) : "The general rule is that if goods are shipped on board a chartered vessel the property vests in the consignee, subject to the right of stoppage in transitu; but if the goods are placed on board tlie purchaser's own ship, that is an absolute delivery — the same as if placed in his cart. The shipper ma}-, however, protect himself by taking a bill of lading making the goods deliverable to his own order on!}' ; but in that case the property would pass as soon as he indorsed the bill of lading generally." In the same way. Lord Chelmsford, in Schotsmans v. Lancashire and Yorkshire Kailway Company, Law Rep. 2 Ch. 337, says in reference to the case of Mitchel v. Ede, 11 Ad. & E. 888 : " It appears to me that this case was not decided upon the distinction between a general ship and one sent for the express purpose of receiving the sugar ; for if it had been a question of stoppage in transitu upon a sale of the sugar to the defendants, and it had been delivered into the defendants' own vessel, sent out for the purpose, although the property in the goods would have passed, yet the effect of the deliveiy would have been re- strained by the indorsement on the bill of lading, and the right to stop in transitu would have been preserved." Much stress has been laid upon those words " free on board," as being an indication of the nature of the contract, — that the transitus was at an end when the goods were on board the purchaser's own ship But those words cannot have an}' such effect in a contract framed as this was, where the intention, as expressed by the contract, was, that SECT. III.] BEKNDTSON V. STRANG. 601 t!iere Avas to be no delivery on boffr' the purchaser's own ship, as the vendor was to find a ship (alt;:ough at the cost of the purchaser), and send the ship, with the cLrgo, to London, where the transitus would be at an end. Tiiat contract, however, was varied by parol, by the arrangement subsequent!}' made, under which the vendor was no longer to find a ship, but was discharged from that part of his engagement. A ship chartered by the purchaser is sent out from London for the pur- pose of taking on board this cargo, subject, of course, to the payment of freight when the cargo should be delivered pursuant to the charter- party. That being so, the vendor takes the additional precaution, not- withstanding the purchaser charters the ship, of taking the bill of lading in this form: " Siiipped by him (the vendor), to be delivered at the port of London, unto order or to assigns." The bill of lading having been taken in this form, the bills of exchange are drawn and accepted, and while the ship was on her vo^-age the bill of lading was indorsed in blank — a circumstance very strongly relied upon by Mr. Druce — and delivered to the purchaser in exchange for the accepted bills of ex- change. No doubt the property- in the goods would pass, but that does not determine the question whether the tratisitus was at an end. With, the single exception that the bills of lading are made out in the name of the vendor to his order, or assigns, and then b}' him indorsed in blank, the case does not really differ from Bohtlingk v. Inglis, 3 East, 381, nor from Spalding y. Ending, 6 Beav. 376, where the purchaser had the bill of lading handed over to him so as to vest the property in him. Does, then, the sliip})ing of goods, in the name of the vendor, and indorsing over the bill of lading, show an animus on the part of the vendor to part with his lien and abandon his right of stoppage in transitu ? Now there are two criteria^ as it appears to me, with re- spect to the stoppage in transitu^ viz. : whether there is a transitus at all? and if so, where it is to end? If a man sends his own ship, and orders the goods to l)e delivered on board his own ship, and the con- tract is to deliver them free on board, then the ship is the place of delivery and the transitus is at end, just as much (as was said in Van Casteel v. Booker, 2 Ex. 691, as if the purchaser had sent his own cart, as distinguished from having the goods put into the cart of a carrier. Of course there is no further transitus after the goods are m the pur- chaser's own cart. There the}' are at home, in the hands of the pinchaser, and there is an end of the whole delivery. The next thing to be looked to is, whether there is any intermediate person interposed between the vendor and the purchaser. Cases no doubt may arise, where the transitus may be at an end although some person may inter- vene between the period of actual delivery of the goods and the pur- chaser's acquisition of them. The purchaser, for instance, may require the goods to be placed on board a ship chartered by himself and about to sail on a roving voyage. In that case, when the goods arc on board L!ie ship everything is done ; for the goods have been put in tlie place :^ G03 BERNDTSON V. STRANG. [CHAP. IV. iiulicatcd by the purchaser, and there is an end of the transiting. But liere, where the goods are to be deUvered in London, the plaintiff, for greater security, takes the bill of lading in his own name, and, being content to part with the property in the goods, subject or not, as the case may be, to this right of stoppage in transitu, he hands over the bill of lading in exchange for the bill of exchange. In that ordinary case of chartering it appears to me that the captain or master is a per- son interposed between vendor and purchaser in such a way that the transitus is not at an end, and that the goods will not be parted with, and the consignee will not receive them into his possession, until the voyage is terminated and the freight paid according to the arrangement in the charterparty. Bohtlingk v. Inglis, 3 East, 381, which has been frequently cited, and never, as far as I can discover, with disapprobation, seems to have furnished the rule which was alluded to in argument in Van Casteel v, Booker, 2 Ex. 691, viz., that if the goods are delivered on board a chartered ship, the property vests in the consignee, subject to the right of stoppage in transitu. Mr. Justice Lawrence, in delivering the judg- ment of the court, says (3 East, 395): "For the benefit of trade, a rule has been introduced into the common law, enabling the consignor, in case of the insolvency of the consignee, to stop the goods con- sioned before they come into the possession of the consignee, which passession Buller, J., in Ellis v. Hunt, 3 T. R. 466, says, means an actual possession. That the possession of a carrier is not such a pos- session, has been repeatedly determined, and the question now is, whether the possession of the master be anything more than the pos- session of a carrier, and not the actual possession of the bankrupt. . . . It does not differ from a similar contract entered into by the consignor, by the directions of the consignee, at the loading port, for the convey- ance of the goods from him to the vendee ; " — in other words, it would be exactly like the original engagement in the present case, and the cir- cumstance of the consignee being the person who provides the ship, makes really no substantial difference whatever — "in which case it would hardly be contended that a delivery by the consignor to themaster of the ship for the purpose of carriage, would be such a delivery to the vendee as to prevent the right of stoppage iti transitu. In each case the freight would be to be paid by the consignee ; in each case the ship would be hired by him ; and there would be no difference, except thai in this case the ship, in consequence of the agreement, goes from Eng- land to fetch the cargo," —just as in the case now before me — " in the other case, the vessel would bring it immediately from the loading port: both in the one case and in the other the contract is with the master for the carriage of the goods from one place to another ; ani^ until the arrival of the goods at their port of destination, and deliver^ to the consignee, they are in their passage or transit from the consigno to the consignee." The learned judge distingishes the case from that of Fowler v. Ky SECT. III.] BEENDTSON V. STRANG. 603 mer (cited in Hodgson v. Loy, 7 T. R. 442), where the sbip, being under the complete control of the bankrupt, had the goods put on board her, not for the purpose of conveying them from the consignors to the con- signees, but that they might be sent by the consignees upon a mercan- tile adventure for which they had bought them, and there the delivery to the consignees, being at the place pointed out by them where the de- livery should be, was held to be complete. Of course the place of deliver}- may be as well on board the ship as at the port of her destina- tion. The case of Van Casteel v. Booker, 2 Ex. 691, does not appear to me to make any substantial difference. There it was the vendee's own ship, and, as was said by Parke, B., in the judgment, if the goods were put on board to be carried for and on the account and risk of the bankrupts, the deliver}- on board put an end to the right of stopping in trcmsitu ; but the vendor took the precaution which was held effec- tual in Turner v. Trustees of Liverpool Docks, 6 Ex. 543, of restraining the effect of that delivery by the indorsement on the bill of lading. The court there (Van Casteel v. Booker, 2 ib. 691), seems to have thrown out that this precaution stopped the effect of putting the goods on board the vendee's own ship, and indicated an intention not to part with the dominion over the goods, nor vest the absolute property in the bankrupts. The case before me is still stronger, as although the ven- dor has taken this precaution in order to guard himself against any possible contingency, still the ship is the instrument of transit, and in parting with these bills of lading in exchange for the bills of exchange, he is aware that the ship has been chartered for the purpose of deliver- ing the goods at the port of London, and that the master of the ship was not the servant of the vendee, but an intermediate agent who, for hire, when the hire was paid, was to deliver the goods in London. It appears to me, therefore, that until the goods reach London the transitus is not ended. Cowasjee v. Thompson, 5 Moo. P. C. 165, differs in every respect from this case. There a ship was sent out, goods were ordered for that ship, and the ship being the i)roi)crty of the person sending her out, the transitus was complete when the goods were delivered on board pursuant to order, nothing else being dn-ected or intended by anybody. Again, in Schotsmans v. Lancashire and Yorkshire Railway Company, Law Rep. 2 Ch. 332, the ship was the ship of the vendee, and the vendor did not take the precaution of pre- serving his right of stoppage hi transitu by making the goods deliver- able to his order or assigns ; the goods by the bill of lading being made deliverable to the purchaser or assigns. The whole case here appears to me to turn upon whether or not it is the man's own ship that re- ceives the goods, or whether he has contractod with some one else qud carrier to deliver the goods, so that, according to the ordinary rule as laid down in Bohtlingk v. Inglis, .3 East, .'JHl, and continually referred to as settled law upon this subject, the transitus is onl}- at an end when the carrier has arrived at the place of destination, and has delivered the goods. 604 EX PARTE GOLDING, ETC. [CHAP. IV. I must, therefore, foUow the decision in Spalding v. Ruding, 6 Beav. 376, and declare tlie plaint! fr entitled out of the fund in court to the bahmce due upon the bill of exchange, with interest from the date of maturity.^ «0 Ex Parte GOLDING, DAVIS, & CO., LIMITED. In the Chancery Division, Court of Appeal, February 12, 1880. [Reported in 13 Chancerij Division, 628.] This was an appeal from a decision of Mr. Registrar Pepys, acting as Chief Judge in Bankruptcy. Knight & Son were merchants in London and at Liverpool. Golding, Davis, & Co., Limited, carried on business as manufacturers of alkali at "NVidues. On the 15th of November, 1877, Knight & Son entered into the following contract with tlie company: — Messrs. Golding, Davis, & Co. We have this day bought of you the following goods of good merchantable quality: Twelve hundred (1,200) drums 5/6 cwt. each, white 70% caustic soda, your own make, per Huson's sampling and test note. Delivery, 100 drums per month, January and December, 1878. Shipment, f. o. b. Liverpool. Price, £14 per ton. Discount, 2.1% and com. 1%. Prompt 14 days after each delivery, or before delivery if required. (Signed) Knight & Son. On the same day Knight & Son entered into the following contract with D. Taylor & Sons, of London : — Messrs. D. Taylor & Sons. We have this day sold to you the undermentioned goods of good merchantable quality: 1,200 drums, 5/6 cwt. each, white 70% caustic soda, Golding, Davis, & Co.'s make, Huson Bros, sampling and test. Mode of delivery, f. o.* b. Liverpool. Time of delivery, 100 drums per month, January and December, 1878, each month's delivery a separate contract. Price, £14 per ton. Discount, 2^%. Prompt 14 days after each delivery. (Signed) Knight & Son. The question in dispute on the present appeal related to the October delivery of 100 tons. On the 28th of October, 1878, Knight & Son's London house wrote to their Liverpool branch, in pursuance of instructions which they had received from D. Taylor & Sons, as follows : — 1 On appeal the decree of Vice-Chancellor "Wood was affirmed as to the point d»> tided In- him, though varied as to a point not discussed in the lower court. BerndtsC V. Strang, L. K 3 Ch. 588. SECT. III.] EX PARTE GOLDING, ETC. 605 " We enclose bills of lading for Taylor's 100 drums, Golding's. Please get them shipped at once, as Taylor wants bills of lading dated October. They are to go by sail to New York." On the 4th of November Knight & Son's Liverpool branch sent instructions to the company to ship the 100 drums at once on board the ship " Laruaca," for New York, then lying at Liverpool. The *•' Laruaca " was a general ship. Tlie goods were accordingly shipped by the company on the 7th of November. The wharfinger's receipt for the goods stated that they were received for shipment on board the "Larnaca" on account of Knight & Son, Liverpool. This receipt was handed to the shipping-brokers of the sliip, who then procured the signature of the master of the ship to the bill of lading. The bill of lading stated that the goods were shipped by David Taylor & Sons, to be delivered at New York unto order or to assigns, he or they paying freight. The sum payable by Taylor & Sons to Kniglit & Son for the goods was £370 10s. 3d., and the sum payable by Knight & Son to the company was £366 14s. 3d. The bill of lading was handed by tlie shipping-brokers to Knight & Son's Jjiverpool branch on the afternoon of the 7th of November, and was sent by them the same evening by post to Knight & Son in London, by whom it was received on the morning of the 8th of November. Meanwhile, on the 7th of Novem- ber, Knight & Son (the partners in the firm all residing in London) had suspended payment ; but this fact was not known to their Liver- pool branch until the morning of the 8th of November. On the same morning the company received a circular informing them of the sus- pension. The "Larnaca" was still in dock at Liverpool, and the goods had not been paid for either by Knight & Son or by Taylor & Sons. The company at once telegraphed to Knight & Son in London not to part with the bill of lading, and they also served a notice of stoppage in transitu on the master of the ship, the ship's agents, and the l)rokers for the ship. Knight & Son had placed their afl'airs in the hands of Mr. F. Cooper, an accountant in London, to whom tlie bill of lading was handed on the 8th of November. On the 13th of November Knight & Son filed a liquidation petition, and on the 14th of November Cooper was appointed receiver under the petition. Oa the 4th of December the creditors resolved upon a liquidation by arrangement, and appointed Cooper trustee. The price of caustic soda liad fallen £3 per ton since November, 1877 ; and it was arranged between Cooper and the company that the contract with Taylor & Sons should be carried out, and that tlieir purchase-money should be paid into a bank in the joint names of Cooper and the manager of tlie com- pany, pending the decision of the court as to the validity of the notice to stop in trcmsitu. This was done, and the goods were accordingly delivered in New York. The Registrar held that the notice was of no effect, on the ground 006 EX PARTE GOLDING, ETC. [CHAP. IV. tliat, the bill of lading being in the name of Taylor & Sons, the prop- erty in the goods was transferred to them, and the transitus was at aa end as between the company, the vendors, and Knight «& Son, the purchasers, when the goods were placed on board the ship and the bill of lading was made out in the name of Taylor & Sons. The company appealed. De Gex, Q. C, and E. Cooper Willis, for the appellants. Winsloiv, Q. C, and F. W. Hollams, for the trustee. Cotton, L. J. We have to consider a case which is, perhaps, to some extent, new as regards the right of stoppage in transitu. Now, of course that right only exists during the transit. If it can be shown by any means that the transit is at an end, then that right is gone, and there would be no occasion to consider how far the right is interfered with or defeated by the claims or rights of third persons. I will first deal with the point whether, m this case, the transit was at an end when the notice was given. As 1 understand it, the transit in such cases is while the goods are in the hands of a carrier for the purposes of the journey indicated under or by the contract between the original vendor and purchaser. That, 1 take it, is the meaning of the transit. When we look into the facts, what we find is this: that as between the original vendors, Golding, Davis, & Co., Limited, and the original purchasers, Knight & Son, Knight & Sou gave directions, as they had a right to do, that the goods should be sent to Liverpool to be shipped on board a ship, which they named, for New York. The voyage, therefore, from the warehouse or works of Golding, Davis, & Co. to New York, was the journey or transit agreed upon or pointed out by the contract between the original vendors and the original purchasers. What we have to consider is whether, at the time when the right of stoppage was attempted to be exercised, the goods were on that transit. It is undoubted that the transit might be put an end to by the pur- chaser who has the property in and the right to claim possession of the goods. But in the present case the goods were in the ship, where the shipowner and the captain were acting simply (subject to what I shall presently consider) as carriers for the purpose of completing the journey which had been indicated as between the vendors and the pur- chasers. But it is said (and that seems to have been the view of the Registrar) that the transit as between the original vendors and pur- chasers was ended. Now that must mean that there had been either a taking possession of the goods by the purchasers, or a sending of the goods on a new and different voyage ; because, if it only means that when the goods should arrive at their destination, they would, under the circumstances existing at the time when the attempt was made to exercise the right to stop, go, not to the original purchaser, but to somebody else, that is the case whenever the original purchaser has handed over the right to receive the goods at the end of the voy- age to somebody else. That would include every case of a transfer SECT. III.] EX PARTE GOLDING, ETC. 607 of a bill of lading. But it is clear that the transfer of a bill of lading, except for value, will never defeat the right of stoppage in transitu, and will never put an end to the transit by making the journey not a journey as between the vendor and the original purchaser, but a jour- ney as between the vendor and somebody else. The real fact in the present case was that the original purchasers, Knight & Son, had entered into another contract, not to sell these particular goods, but a contract which they intended to supplement and make good by means of the goods which they would acquire under their contract with Golding, Davis, & Co. No doubt New York was the end of the jour- ney indicated in the contract between Knight & Son and Taylor & Sons ; but it did not on that account cease to be, and it was uot on that account a bit the less the end of the journey contemplated as between Golding, Davis, & Co. and Knight & Son. The view which the Registrar took cannot, in m}' opinion, be maintained. The journey indicated by the contract between the original vendors and purchasers was still continuing, there had been no new or different journey indicated ; and that entirely distinguishes the case from that which possibly was in the mind of the Registrar, where on the original pur- chase one journey had been contemplated, but in consequence of a contract between the original purchaser and the sub-purchaser he directs that the goods shall go to a different terminus. In such a case, of course the right of stoppage in transitu is at an end; because what is done is equivalent to the original purchaser taking possession of the goods and dealing with them by means of that possession. It was urged by Mr. Winslow that what occurred in the present case was equivalent to that ; but, in my opinion, that view cannot be sustained. I think that what was done had just the same legal effect as if the bill of lading had been made out in the name of the original purchasers and had then been assigned by them to their sub-purchasers. There was nothing done by the purchasers to alter the destination agreed upon between tliem and the original vendors, no actual taking pos- session of the goods, and, in my opinion, there was nothing which can be considered as equivalent to their doing that and then starting the goods as from their possession on a different and new voyage. Then, the transitus being still existing, and there being a right in the vendors to stop, unless something had interfered with that right, can it be said that tiie sub-sale has interfered with it? Now, I take it the principle is this : that, tlie vendor cannot exercise his right to stop during the transit, if the interests or rights of any other persons which they have acquired for value will be defeated by his so doing. Except so far as it is necessary to give effect to interests whicli other persons have acquired for value, the vendor can exercise his right to stop in transitu. It has been decided that he can do so when the original purchaser has dealt with the goods by way of pledge. Here we have rather the converse of that case. There has been an absolute sale of the goods by the original purchaser, but the purchase-money has not 008 EX PARTE FALK. IN KE KIELL. [CIIAP. IV. been paid. Can the vendor make effectual bis right of stoppage in transitu without defeating in any way the interest of the sub- purchaser ? In my opinion he can. He can say, I claim a right to retain my vendor's lien. I will not defeat the right of the sub- purchaser, but what 1 claim is to defeat the right of the purchaser from me ; that is, to intercept the purchase-money which he will get, so far as is necessar}' to pay me. That, in my opinion, lie is entitled to do, not in any way thereby interfering wuth the rights of the sub- purchaser, but only, as against his own vendee, asserting liis right to resume his vendor's lien and to obtain payment by means of an exer- cise of that right ; interfering only with what would have been a bene- fit to the vendee, wlio would otherwise have got his purchase-money without paying for the goods, but in no way interfering with any right acquired by the sub-purchaser of the goods. Appeal allowed. Appellants to receive the whole of the purchase- money due under their contract with Knight &, Sou out of the fund in the joint names.^ ^ Ex PARTE FALK. In re KIELL. In the Chancery Division Court of Appeal, May 6, 13, 1880. [Reported in 14 Chancery Division, 446. J CHARLES FITCH KEMP, Appellant v. HERMANN EUGENE FALK, Respondent. In the House of Lords, July 10, 1882. [Reported in 7 Appeal Cases, 573.] In March, 1878, Kiell bought on credit from Falk a cargo of salt, chartered the "Carpathian," and consigned the salt (which had been put on board by Falk) to Wiseman, Mitchell, & Co., of Calcutta. Through T. Wiseman & Co., of Glasgow, the agents of Wiseman, Mitchell, & Co., Kiell obtaiued an advance from the Bank of Scotland upon the security of the bills of lading which Kiell indorsed. In Juh', Wiseman, Mitchell, & Co. sold the cargo " to arrive." On the 20th of July, Kiell went into liquidation, and Falk, on the 27th, served on the shipowners in Liverpool notice to stop in transitu. The ship arrived at Calcutta on the 29th of July ; part of the cargo was delivered to sub-purchasers on the 3d of August, and the remainder, after notice to stop i7i tra^isitii had been served on the captain, on the 5th of August. Wiseman, Mitchell, & Co. remitted the proceeds of the subsales to the Bank of Scotland, who deducted the amount of their adviince and paid the bal- ance to the appellant, Kiell's trustee in bankruptcy. Falk having ap- plied to the Court of Bankruptcy to order the trustee to pay over the ^ James and Baggallat, L.JJ., delivered concurring opinions. SECT. III.] EX PAKTE FALK. IN RE KIELL. 609 balance, which was less than the amount for which Falk sold to Kiell, the registrar, sitting as chief judge, refused the application.- Bkamwell, L. J. 1 think there was no effectual stoppage in tran- situ until the master of the ship was told by the vendor's agent to stop the goods. I think that what took place at Liverpool amounted only to telling some one to stop the goods, not to a stoppage in transitu^ and I cannot think that any duty was imposed on the shipowners at Liverpool to stop the goods. It seems to me that it would be mon- strous to hold that the telling somebody else to stop goods in transitu amounts to a stoppage in transitu. But I am of opinion that the notice given to the master of the ship on the 5th of August would have been effectual as a stoppage in tra?isitu if there had been no sub-purchaser. The master was then in possession of goods as carrier ; he had not per- formed the whole of his duty in that character,' and he had not lost his lien on the goods for the freight. Mr. Benjamin was obliged ingeniously to invent a new contract between the master and the sub-purchaser con- stituted b}^ the delivery orders. I ara of opinion that there was no such new contract. With regard to the cases which have been referred to upon what is called constructive deliver}', it seems to me that, if there is not a delivery of the whole of a cargo, it had better not be deemed a delivery of the whole. I cannot understand the case of Slubey v. Hey ward, 2 H. Bl. 504, because it appears that the sub-purchaser had paid for the goods, and on what ground there could be a stoppage in transitu as against him I am at a loss to see. The note of the case is a ver}' loose one. The court seems to have held that which, with great submission, appears to me a \Qvy doubtful proposition, that the carrier's duty had come to an end. As to Hammond v. Anderson, 1 B. & P. (N. R.) 69, there is not a word in the judgments about deliver}' of part of the cargo being a constructive delivery of the whole. What Sir James Mansfield, C. J., said was this: "On a for- mer occasion the court decided that when part of the goods sold by an entire contract was taken possession of, the vendee had taken possession of the whole." But with regard to the case then before the court he said : " So much having been taken away, and the whole having been weighed by the bankrupt, it is insisted that the bank- rupt had taken possession of the whole. . . . As to those bales which were sent away, the bankrupt had taken actual possession, and therefore no question can arise ; and when it is admitted that he had taken possession of a part, how can it be said that he had not taken possession of the whole? The price was entire, and the whole to be paid for by one bill." The effect of the decision is shown by the short judgment of Kooke, J., who said: "The facts of the case are too strong to be got over. The whole of the goods was paid for by one bill ; a general order was given for the delivery of the whole, and the purchaser under that order went and took away a part ; how could ho 1 The statement of facts has l)een al)breviated. 610 EX PARTE FALK. IN EE KIELL. [CHAP. IV. more effectually change the pobsession?" It was a delivery of the whole cargo, because the wharliuger was holding the whole for the pur- chaser as his bailee and with a duty to him. I think, therefore, that in the present case there was not an end of the transitus before the notice of stoppage was given to the master on the 5th of August. Then arises the question whether, there having been a sub-sale of the goods, the stoppage in transitu can prevail. In one sense it must be admitted that no right in the goods remained in Kiell after the sub-sale, though he might still have stopped them in transitu as against his sub- purchasers. If there is any reason at all in the thing, and I think there is — for suppose Kiell had not become a bankrupt, but had been insolvent, would there have been anything unreasonable in the law interfering and saying to him, Your sub-purchaser's purchase-money shall not get into your hands, but shall go to pay your vendor? — what diilerence can it make that the purchaser has become a bankrupt? If the right of stoppage in transitu is ever to be exercised, I can see nothing unreasonable in its being exercised in such a case against the sub-purchaser's purchase-money. But there is the decision in Ex parte Golding, Davis, & Co., 13 Ch. D. G28, which seems to me to be exactly in point. I am not going to shelter myself under the authority of that case. In my opinion it was rightly decided. What difference is there in principle between the case of a man selling goods on credit for £500 and these being then resold for £G00, and the case of the purchaser pledging the goods for £600 with a right of sale by the pledgee? Why, if the vendor can stop the proceeds of sale in the one case, should he not have a right to stop them in the other? What injury is there to the sub-purchaser? The decisions in In re Westzinthus, 5 B. & Ad. 817, and Spalding v. Ruding, 6 Beav. 376, seem to me to be applicable both to Ex parte Golding, Davis, & Co., and to the present case. The appeal must succeed.^ Appeal was taken to the House of Lords, and the following opinion delivered. Lord Blackburn. My Lords, I perfectly agree in the result that this appeal must be dismissed with costs. Originally in this case there was a statement of facts made in the Court of Bankruptcy, upon which there was an appeal to the Appeal Court ; and on that statement of facts the ingenuity of counsel seems to have led the court below to draw some inferences, which induced them, whilst giving judgment, as they have done, in favor of Mr. Falk, the present respondent, to intimate at the same time that they thought the case raised a question which had been raised in the case of Ex parte Golding, Davis, & Co., 13 Ch. D. 628, and that therefore they should give leave to appeal. When the case came here the first time, my noble and learned friend Lord Penzance thought that the statement of facts was not intelligiblcs and that it was desirable that it should be sent down to have the facts 1 James and Baggallay, L.JJ., delivered concurring opinions. SECT. III.] EX PARTE FALK. IN EE KIELL. 611 made clear ; and now it appears itiat the original statement of facts was not only not intelligible but also not quite accurate ; and we have now an amended and supplementarj- statement of facts, showing what the facts of the case really were. Taking that statement, it seems to me that the case is perfectly clear. We have no occasion to consider whether the case of Ex j^ctrte Golding, Davis, & Co., supra, was well or ill decided, because no point relating to it arises here. It appears that Mr. Falk of Liverpool had sold to Mr. Kiell a quan- tity of salt, which was shipped on board a vessel bound for Calcutta ; that Mr. Kiell accepted a draft drawn against that cargo ; that bills of lading were made out, which were signed not as is usual by the master but by the shipowner himself, and that Mr. Kiell got those bills of lading. Now, so far as that goes, standing there, nothing can be more thoroughly established than the law upon it. Mr. Falk having delivered the goods and taken a bill of exchange had no right whatever to meddle with those goods further, unless before the end of the tran- situs (I shall say a word presently as to what comes at the end of the ti'ansitus), Kiell the purchaser became insolvent and stopped payment, and then if Falk had stopped the goods in transitu he would have been revested in his rights as an unpaid vendor as against Kiell. It is pretty well settled now that it would not have rescinded the contract. But before the end of the trafisitus came, his right to stop the goods m transitu might be defeated by an indorsement upon the bill of lading to a pei'son who gave value. In the present case there was such an indorsement and transfer of the bill of lading, but it was only an indorsement and transfer for a particular and limited purpose. It appears that Mr. Kiell in order to obtain an advance got Messrs. T. Wiseman & Co. of Glasgow, the correspondents and agents of Messrs. Wiseman, Mitchell, Reid, & Co. of Calcutta, to make an advance in his favor by drawing a bill of exchange upon him ; and to secure the pay- ment of that Inll of exchange the bill of lading was indorsed, and the Bank of Scotland, who discounted or took that bill, became holders of the bill of lading for the purpose of protecting themselves. It was clearly a transfer for value to the Bank of Scotland, and as such, so far as that went, it defeated the right of the stoppage in transitu at law. But the unpaid vendor's right, except so far as the interest had passed ])y the pledging of the bill of lading to the pledgee, or the mortgagee, whichever it was, enabled the unpaid vendor in equity to stop in transitu everything which was not covered by that pledge. That was settled and has been considered law, or rather equity-, ever since the case of In re Westzinthus, 5 B. & Ad. 817, and has been affirmed in Spalding v. Ruding, G Bcav. .376 ; 12 L. J. (Ch.) 503 ; and I have no doubt it is vcrj- good law upon that point. Here therefore the stoppage by Falk as unpaid vendor would revest in him his lien except so far as concerned the Bank of Scotland, unless something else had happened. Now what has happened? The argu- ment of Mr. Bompas was this : First of all it appears that Messrs. 612 EX PARTE FALK. IN RE KIELL. [CHAP. IV. "Wiseman, Mitchell, Rcid, & Co., n-lio were the persons to whom the goods were consigned (I do not understand whether the}'' were pur- chasers, or merely agents for Kiell & Co.), sent over to their correspond- ents T. Wiseman & Co. of Glasgow a sale note, and then they forwarded it to Kiell & Co. in this letter: "Dear Sirs, — We enclose sale note of your cargo of salt ex ' Carpathian ' to arrive," and so on — the rest of the letter does not matter. So that at that time it appears that Messrs. Wiseman, Mitchell, & Co. had entered into a contract at Calcutta for a sale of the goods " to arrive." The date of that letter was the 17th of July, a fortnight or so before the ship actually did arrive at Calcutta. That, it was argued, put an end to the vendor's right to stop the goods in transitu^ and 2^''(^ tanto the equitable right to stop them in transitu which remained in Mr. Falk. I have en- deavored to understand on what ground it is supposed to put an end to it. No sale, even if the sale had actually been made with payment, would put an end to the right of stoppage in transitu unless there w^ere an indorsement of the bill of lading. Why any agreement to sell, unless it was made in such a way as to pass the right of property in the goods sold, should be supposed to put an end to the equitable right to stop them in transitu I cannot understand. I am quite clear that it does not. The next thing which was attempted to be argued was this. The Bank of Scotland, the holders of the bill of lading at Glasgow, for- warded the bill of lading in due course to their agents at Calcutta ; and it is surmised that their agents at Calcutta must have been some persons different from Messrs. Wiseman, Mitchell, & Co. I infer that Messrs. Wiseman, Mitchell, & Co. were the people who acted as their agents in this transaction, but I do not think it matters whether they were or not. The Bank of Scotland sent the bill of lading to their agents, whether the}- were Messrs. Wiseman, Mitchell, & Co. or any one else. Those agents received that bill of lading well knowing (or at all events they ought to have known) that the Bank of Scotland had by virtue of this bill of lading a hold over the goods. They were en- titled to see that tlie goods were not sold or disposed of in any way prejudicial to their lien, and, if they were sold, that the money, or enough of it to repay the Bank of Scotland and secure them, should pass through their hands or the hands of their agents ; and I see nothing that happened afterwards which shows that they acted other- wise than in strict conformity with the duty thus cast upon them. It was argued that inasmuch as Messrs. Wiseman, Mitchell, & Co. had acted for Kiell & Co. in selling the goods, taking a del credere com- mission to secure that the people to whom they sold should pay the price, therefore they were persons who were entitled to have the bill of lading indorsed to them as a security. I am utterly unable to understand that argument; it is clear to me that they were not so entitled. The next thing which was said was this. There was a little con- SECT. III.] EX PARTE FALK. IN EE KIELL. 613 fusion ill the statement here, but it is now said upon the amended statement of facts, that Messrs. Wiseman, Mitchell, & Co., who I can- not l)ut think were the persons employed b}' the Bank of Scotland as their agents, did at some time (I do not exactlj' know when) indorse the bill of lading and show it to the captain. I do not think that that comes to more than this, that the}' gave the captain complete notice, when he arrived at Calcutta, " We are the persons who have the legal right to the delivery of tliese goods, for we have the bill of lading, holding it under the Bank of Scotland, and consequently we are the persons entitled to the goods. You can deliver only to us without being responsible to us ; if you deliver to us or with our sanction, you will not be responsible to us." I can put no other meaning upon it. Then it was argued that this amounts to a delivery- of the whole cargo by the shipowner to Messrs. Wiseman, Mitchell, & Co., who from that time forward would be holders of the goods ; the shipowner in whose physical possession, in the hold of whose vessel, the goods lay, being changed from holding the goods as shipowner, not having delivered the goods, into a warehouseman who was very inconvenientl}' holding those goods in his ship as a warehouse. I think that that is an arrangement which might be made although it is not a ver\- con- venient one. The freight was not paid ; but I think it is possilale to make an arrangement by which, though the freight is not paid, the shipowner changes himself completeh' into a warehouseman instead of being a carrier or a shipowner ; he alters his responsibilities altogether ; and 3'et b}- arrangement or agreement retains a lien over the goods until the freight is paid. I think such a contract might be made. But when one is asked to say that such a contract was made, the non- payment of the freight is a very important element leading one to say that no such contract was made at all. In this case I cannot help thinking that no such contract was made, and there is no reason why we should hold that it was. The shipowner acted in the same way as if it had not been made and in no other wa}'. Then comes an argument which I really think iS' not tenable, and I .should hardly mention it if it were not for the great importance of everything relating to the Factors Act and of every question touching it in the commercial world. It was argued that the recent Statute 40 & 41 Vict. c. 39 s. 5, which says that the transfer of a delivery order or any other document of title shall put an end to an unpaid vendor's right to countermand that deliver}' order and to keep the goods, oper- ates just to the same extent and under the same circumstances as in the case of a bill of lading for goods at sea. In oider to make out that proposition reliance was i)laced upon this fact, that INIessrs. Wise- man, Mitchell, & Co., who were holders of the bill of lading, ah I have already said, for the Bank of Scotland, wrote to th(! captain of tiic ship saying, *■' In order to save trouble we will not sign deliver}- orders for salt, but have written our sircar on board the above vessel to deliver salt to those men who produce cash receipts from our cashiers ; " and 614 EX PARTE FALK. IN KE KIELL. [uHAP. IV. by some strange process of reasoning it was said that the man who brought and showed to the sircar of Messrs. Wiseman, Mitchell, & Co. a receipt for a sum of money paid to their cashier for the salt, was the holder of a document of title for the salt in such a way that the in- dorsement of it could put an end to the I'ight of stoppage in transitu h\ Mr. Falk. Now in the first place the statute in question was never meant to have that effect. In the next place it is an abuse of language to call such a receipt as this a document of title in Siuy shape. Then the last and desperate attempt was to saj* that the stoppage in transitu was not until the 5th of August. I see that Lord Bramwell takes a ditferent view of the law from what I had always understood it to be. I had always m3'self understood that the law was that when you became aware that a man, to whom you had sold goods which Lad been shipped, had become insolvent, your best wa}', or at least a very good way, of stopping them in transitu was to give notice to the shipowner in order that he might send it on. He knew where his master was likely to be, and he might send it on ; and I have always been under the belief that although such a notice, if sent, cast upon the shipowner who received it an obligation to send it on with reason- able diligence, 3-et if, though he used reasonable diligence, somehow or other the goods were delivered before it reached, he would not be responsible. I have always thought that a stoppage, if effected thus, was a sufficient stoppage in transitu ; I have alwaA's thought that when the shipowner, having received such a notice, used reasonable diligence and sent the notice on, and it arrived before the goods were delivered, that was a perfect stoppage in transitu. Consequently I think that when notice was given to the shipowners (and although they had signed the bill of lading instead of the master signing it, I do not think that that makes an}- difference ; I onh' mention it to say that it makes none) they were under an obligation to forward it with reason- able diligence, if the}- could, to the master. "What the shipowners did was this : on the 31st of Jul}' the}- sent a telegram (they waited two days, and they might have got into a scrape by that means), but they did send this telegram "Charterers Carpa- thian failed, unless bill of lading held for value, don't deliver." That was, as it strikes me, a sending forward of the notice to stop the goods in transitu : it was tantamount to saying, " We send to our captain the notice we have formally received ourselves ; " and consequently I should say that the stoppage in transitu was complete on the 31st of July. But it is not necessary to decide that point, for it is clear enough that the goods wei'e not then delivered, and nothing was done which could be called a delivery of the whole or any part of them until the 3d of August, when a person brings one of these receipts for, I think, 1.000 maunds of salt, or some small quantity of salt, and gets it delivered. Then it is said that the delivery of a part is a delivery of the whole. It may be a delivery of the whole. In agreeing for the delivery of SECT. III.] EX PARTE TALK. IN EE KIELL. 615 goods with a person you are not bound to take an actual corporeal delivery of the whole in order to constitute such a deliver}', and it may very well be that the deliver}' of a part of the goods is sufficient to afford strong evidence that it is intended as a deliver}' of the whole. If both parties intend it as a delivery of the whole, then it is a delivery of the whole ; but if either of the parties does not intend it as a de- livery of the whole, if either of them dissents, then it is not a delivery of the whole. I had always understood the law upon that point to have been an agreed law, which nobody ever doubted since an elabo- rate judgment in Dixon v. Yates, 5 B. & Ad. 313, 339, by Lord Wensle}dale, who was then Parke, J. The rule 1 had always under- stood, from that time down to the present, to be that the delivery of a part may be a delivery of the whole if it is so intended, but that it is not such a delivery unless it is so intended, and I rather think that the onus is upon those who say that it was so intended. Therefore the delivery of this particular parcel of salt was not a delivery of anything else. What we are now dealing with is the delivery of the salt which was delivered after the 5th of August, and which was quite sufficient to dispose of the whole sum now in dispute. We do not need to inquire what were the rights in any particular parcel of salt delivered on the 3d of August. Supposing that those were mis-deliveries no harm would happen, as quite enough remained to pay the Bank of Scotland, and no dispute would arise about that ; there is no complaint by any- body respecting it. The present question is with regard to the stop- page m transitu of the residue after an undoubted notice of stoppage in transitu was served upon the 5th of August. Is that subject to the rule that although the whole of the cargo could not be stopped because the bill of lading had been transferred to the Bank of Scotland, the interest which still remained in Kicll or in KicU's assigns to whom he bad sold it, or in anybody else except those who had become trans- ferees of the bill of lading, might be stopped and might become vested in Falk the original vendor? I think there is no reason why it should not ; and that being so, the judgment of the court below is right and ought to be affirmed.^ Cohen^ Q. C, and F. Thompson, for the appellant. Benjamin, Q. C, Watkin Williams, Q. C, and G.W. Laiorance, for the trustee. 1 Lords Seluorne, AVatson, and Fitzgeijald delivered concurring opinions. Compare witli Ex parte Golding and Ex parte, Falk, Menipliis, &c., Iv. Co. v. Freed, 38 Ark. 614; Branaii v. Atlanta, ^-c, U. Co., 108 Ga. 70; Neinieyer Lumber Co. v Burlington, &(•., K. Co., 54 Neb. 321; Gwyn r. Richmond, &c., R. Co., 85 N. C. 429; Eaton i-. Cook, 32 Vt 58. 616 BETHELL V. CLARK. [CIIAP. IV. BETHELL & CO. v. CLARK & CO. In the Queen's Bench Division, Court of Appeal, March 15, 1888, [Reported in 20 Queen's Bench Division, 615.] Appeal from the judgment of the Queen's Bench Division on a special ease. The facts are fully stated in the report of the case in the court below (19 Q. B. D. 553). For the purposes of this report the}- may be briefly stated as follows : The special case was stated on interpleader proceed- ings to determine the title to the possession of certain goods. The goods had been sold by Clark & Co., iron-founders at Wolverhampton, to Tickle & Co., of London. The order for the goods did not specify any place to which they were to be sent, but on June 28, 1885, the pur- chasers wrote the vendors as follows : " Please consign the ten hogs- heads of hollow ware to the 'Darling Downs,' to Melbourne, loading in the East India Docks here." The goods were delivered by the vendors to the London and North Western Railway Company, to be forwarded to the ship. They were accordingly sent bv railway to Poplar, and taken thence to the ship in lighters by the Thames Steam Tug and Lighterage Company, as agents of the railway company-, a mate's re- ceipt being taken for them on shipment, which was forwarded to the purchasers. The vendors being informed that the purchasers were insolvent gave notice to the railway company to stop the delivery of the goods on board the ship ; and the railway compan}' gave a similar notice to the lighter compan}-, but too late to prevent the shipment of the goods on the " Darling Downs." Bills of lading for the goods in accordance with the mate's receipt had been made out and signed ready for deliver}', but, not having been applied for at the time, they remained in the possession of Bethell & Co., the owners or agents for the owners of the " Darling Downs," who were stakeholders in the interpleader. Shortly after the shipment the " Darling Downs " proceeded to Mel- bourne with the goods on board, but before she arrived at Melbourne the vendors wrote to the shipowners claiming the goods as their prop- ert}'. A petition in bankruptcy having been filed by the purchasers of the goods, a scheme of arrangement was sanctioned by the creditors, and a trustee appointed to administer their estate and effects. The goods being claimed by such trustee and also by the vendors, the ship- owners interpleaded. The question for the court was whether the trus- tee or the vendors were entitled to the possession of or property in the goods. The court below (Mathew and Cave, JJ.) gave judgment for the vendors on the ground that the right of the vendors to stop the goods in transitu continued till they arrived at Melbourne. SECT. III.] BETHELL V. CLARK. 617 Willis, Q. C, aud G. E. Lyon, for the trustee. R. T. Reid, Q. C, aud C. C. Plumptre, for the vendors, were not called upon. Lord Esher, M. R. In this case the vendors being unpaid and the purchasers having become insolvent, according to the law merchant the vendors had a right to stop the goods while in transitu, although the property in such goods might have passed to the purchasers. The doc- trine of stoppage in transitu has always been construed favorably to the unpaid vendor. The rule as to its application has been often stated. When the goods have not been delivered to the purchaser or to any agent of his to hold for him otherwise than as a carrier, but are still in the hands of the carrier as such and for the purposes of the transit, then, although such carrier was the purchaser's agent to accept delivery so as to pass the property, nevertheless the goods are in transitu and may be stopped. There has been a difficulty in some cases where the ques- tion was whether the original transit was at an end, and a fresh transit had begun. The way in which that question has been dealt with is this : where the transit is a transit which has been caused either by the terms of the contract or by the directions of the purchaser to the vendor, the right of stoppage in transitu exists ; but, if the goods are not in the hands of the carrier by reason either of the terms of the contract or of the directions of the purchaser to the vendor, but are in transitic after- wards in consequence of fresh directions given by the purchaser for a new transit, then such transit is no part of the original transit, and the right to stop is gone. So, also, if the purchaser gives orders that the goods shall be sent to a particular place, there to be kept till he gives fresh orders as to their destination to a now carrier, the original transit is at end when they have reached that place, and any further transit is a fresh and independent transit. The question is, under whicli of these heads the present case comes. In this case the contract does not determine where the goods are to go. It is argued for the vendors that directions were given by the purchasers to the vendors that the goods should be forwarded by carriers to Melbourne, so that while they were in \he hands of any of the different sets of carriers who would necessa- rily be employed in so forwarding them, and until they arrived at INIel- bourne, they were still in transitu. The question, whether that is so, is a question of fact in the particular case. The goods were purchased at Wolverhampton, and, after tlie contract was made, the purchasers gave directions once and once only as to what was to be done with them. It was argued that those directions were to deliver them on board a par- ticular ship in the East India Docks, and that there were no directions beyond the directions for such delivery, but that a fresh direction as to the ultimate destination of the goods would be required ; and therefore the original transitiis was at an end when the goods were put on board the ship. That question turns on the true construction of the letter of June 28, which says, "Please deliver the ten hogsheads of hollow ware to the ' Darling Downs,' to Melbourne, loading in the East India Docks 618 BETHELL V. CLARK. [CHAP. IV. here." The argument really amounted to saying that the meaning was that the goods were to be delivered on board the ship to be kept bj those in charge of her as in a warehouse, and subject to orders from the purchasers either to deliver the goods back again out of the ship or to take them on where the ship was going. That cannot be the business meaning of the transaction. Here we have a ship loading in the docks for Melbourne, and the captain would have no authority to receive goods on board as a warehouseman, or for any purpose but to be carried to Melbourne. The meaning is that the goods were to be delivered on board to be carried to Melbourne. What would be the mode in which thev would be so delivered? They would be put on board and the mate's receipt would be taken for them, the terms of which would show that the goods were received for carriage to Melbourne, and a bill of lading would afterwards be signed in the terms of such receipt. That is what was done here. It follows, in my opinion, that those goods were in the hands of car- riers as such, and in the course of the original transitiis from the time they left Wolverhampton till they reached Melbourne. The case there- fore falls within the doctrine of stoppage in transitu, and is not within the class of cases where, goods going through the hands of a number of carriers, at some stage in the process fresh directions are required from the purchaser as to further carriage. Here no such further directions were required. The letter of June 28 gives all the directions necessary for the transit to Melbourne. It is not necessary to refer to all the authorities cited. The argument of the counsel for the trustee is di- rectly met by what was said by Bovven, L. J., in Kendal v. Marshall, Stevens, & Co., 11 Q. B. D. 356, at p. 369. He there says: "Where goods are bought to be aftei-wards despatched as the vendee shall direct, and it is not part of the bargain that the goods shall be sent to any par- ticular place, in that case the transit only ends when the goods reach the place ultimately named by the vendee as their destination. Jn Coates V. Railton, 6 B. & C. 422, several cases were cited by Bayle.y, J., in the course of his judgment, and the principle to be deduced from them is, that where goods are sold to be sent to a particular destina- tion, the transitus is not at an end until the goods have reached the place named by the vendee to the vendor as their destination." In Ex parte Miles, 15 Q. B. D. 39, I cited the test laid down by Lord Ellen- borough in Dixon v. Baldwen, 5 East, 175, where he says, "the goods had so far gotten to the end of their journey that they waited for new orders from the purchaser to put them again in motion, to communicate to them another substantive destination, and that without such orders they would continue stationary ; " and, applying that rule to the case then before me, I held that the goods had in that case got to the end of their journey when they arrived at Southampton. That would not be the case here ; when the goods were put on board the ship, they would be in motion without any fresh orders being necessarj- until they reached Melbourne. Therefore, in my opinion, the right to stop in SECT. III.] ROWLEY V. BIGELOW. 619 transitu still existed, and was rightly exercised by the vendors. I think the decision of the court below was correct, and that this appeal must be dismissed.^ Appeal dismissed.^ Q DAVID ROWLEY et al. v. BENJAMIN BIGELOW et al. In the Supreme Judicial Court of Massachusetts, 1832. [Reported in 12 Pickering, 307.] Trover for 627 bushels of j-ellow corn, valued at 55 cents a bushel. At the trial before Wilde, J., it was proved b}- the plaintiffs, that on the 21th of May, 1830, the corn belonged to them and was in their possession in the city of New York, on board the sloop "Milan," of which S. Dunning, one of the plaintiffs, was master, and that it was measured and delivered on board the schooner " Lion." They alleged that one William N. Martin, a merchant there, fraudulently obtained possession of it by pretending to purchase it for cash ; and it was proved that on the 25th of May he shipped it on board the " Lion," consigned to the defendants at Boston, and that the vessel sailed in the afternoon of that day for Boston. On the 26th, Dunning, having ineffectually demanded payment for the corn, at Martin's counting- house, proceeded to Boston, to reclaim it. He reached Boston before the arrival of the " Lion," and on the 29th gave notice to the defend- ants, to whom by Martin's orders the corn was to be delivered, that Martin had fraudulent!}' obtained it from the plaintiffs and that they intended to repossess themselves of it. On the 30th, when the " Lion " had arrived in Boston harbor. Dunning boarded her and demanded of the master possession of the corn, giving him notice that Martin had obtained it fraudulently from the plaintiffs. The master notwithstand- ing delivered it to the defendants ; after which Dunning demanded it of tliem and tendered them an}' freight or charges which they had paid. They refused to deliver the corn, and thereupon the suit was commenced. In order to establish the fraud on the part of Martin, the plaintiffs relied on the depositions of C. A. Jackson and others, mercliants in New York, who testified that Martin liad made similar purchases of tliem al)out tlie same time, and under circumstances tending to show that he was insolvent, and that he knew it and had no reasonable expectation of paying for the merchandise according to his contract. The defendants objected to the admission of these depositions, but the judge permitted them to be read to the jmy. Tlie defendants, to establish their right to hold the corn against the plaintiffs, offered in evidence a bill of lading, dated May 17, 1830, signed by the master of the " Lion," purporting to be for 2,000 bushels 1 Fry and Lopes, L. JJ., delivered concurrin;^ opinion.^. ' Lyons v. Hoffnung, 15 App. Cas. .391, accord. Conf. Re Gurney, 67 L. T. Rep. 5981 620 EOWLEY V. BIGELOW. [CHAP. IV. of yellow corn shipped by Martin and consigned to the defendants ; also an invoice corresponding to the bill of lading and purporting to be for 2,000 bushels of corn consigned to the defendants for sale on the shipper's account, and signed by Martin ; also a letter from Martin to the defendants, dated May 17 (to which the bill of lading and invoice were annexed) advising that he valued on them in favor of Ilenr}- Bennett for $1,000, at ten days' sight, and directing them, if he had valued too much on this shipment, to charge it to some previous one, there being an existing account between Martin and the defend- ants. And it was proved that a bill drawn accordingly b}' Martin, was accepted b}" the defendants on the 20th of May and paid by them at maturity". There was no evidence that the defendants had any knowledge of the fraudulent conduct of Martin, but it appeared that the}' received the bill of lading and invoice and accepted the draft in the usual course of business. Upon this evidence the judge ruled, that the defendants had a good title to the property notwithstanding the fraudulent conduct of Martin, and notwithstanding the bill of lading had been signed before the corn was shipped ; to which the plaintiffs excepted. A verdict was taken for the defendants by consent ; and if the whole court should be of opinion that the}' had a valid title to the corn, under the invoice and bill of lading, judgment was to be rendered upon the verdict ; but if the court should be of opinion that the ruling was wrong, the verdict was to be set aside and the defendants defaulted, unless the court should also be of opinion that the depositions above mentioned were improperly admitted ; in which case a new ti'iai was to be granted. Fletcher and TV. J. Huhbard, for the plaintiffs. Curtis, for the defendants. Shaw, C. J. 2. It is next contended on the part of the plaintiffs, that no property passed by the fraudulent purchase of Martin, from the plaintiffs to him, so as to enable him to make a title to the defendants. The evidence clearl}' shows that there was a contract of sale, and an actual delivery of the goods, by their being placed on board a vessel, pursuant to his order; and this delivery was unconditional, unless there was an implied condition arising from the usage of the trade that the delivery was to be considered revocable, unless the corn should be paid for, pursuant to the contract and to such usage. This contract and deliver}' were sufficient in law to vest the property in jNIartin, and make a good title, if not tainted by fraud. But being tainted by fraud, as between the immediate parties, the sale was void- able, and the vendors might avoid it and reclaim their property. But it depended upon them to avoid it or not, at their election. They might treat the sale as a nullity and reclaim their goods ; or affirm it and claim the price. And cases may be imagined, where the vendor. SECT. III.] EOWLEY V. BIGELOW. 621 notwithstanding such fraud practised on him, mighty in consequence of obtaining security, bj' attachment or otherwise, prefer to affirm the sale. The consequence therefore is, that such sale is voidable, but not absolutely void. The consent of the vendor is given to the trans- fer, but that consent being indueed b}' false and fraudulent representa- tions, it is coutrar\' to justice and right, that the vendor should suffer b}' it, or that the fraudulent purchaser should avail himself of it ; and upon this ground, and for the benefit of the vendor alone, the law allows him to avoid it. The difference between the case of property thus obtained, and prop- ert}- obtained by felony, is obvious. In the latter case, no right either of propert}' or possession is acquired and the felon can convej' none. We take the rule to be well settled, that where there is a contract of sale, and an actual delivery pursuant to it, a title to the property passes, but voidable and defeasible as between the vendor and vendee, if obtained by false and fraudulent representations. The vendor tliere- fore can reclaim his property as against the vendee, or an\- other person claiming under him and standing upon his title, but not against a bona fide purchaser without notice of the fraud. The ground of exception in favor of the latter is, that he purchased of one having a possession under a contract of sale, and with a title to the property though defeasible and voidable on the ground of fraud ; but as the second purchaser takes without fraud and without notice of the fraud of the first purchaser, lie takes a title freed from the taint of fraud. Parker v. Patrick, 5 T. R. 175. The same rule holds in regard to real estate. Somes v. Brewer, 2 Pick. 184. 3. Another ground is, that the plaintiffs had a right to stop in transitu, and exercised that right, in sufficient season, by demanding the goods of the master on his arrival at Boston, and before the goods reached the hands of the defendants. The right of stopparje in transitu is nothing more- than an extension of the right of lien, which b}' the common law the vendor has, upon the goods, for the price, originall}' allowed in equity and subsequently adopted as a rule of law. By a bargain and sale without deliver}- the propert}' vests in the vendee ; but where b}' the terms of sale, the price is to be paid on deliver}-, the vendor has a right to retain the goods till payment is made, and this right is stricll}' a lien, a right to detain and hold the goods of another as security for the payment of some debt, or performance of some dnt}-. But when the vendor and vendee are at some distance from each other, and the goods are on their way from the vendor to the vendee, or to the place by him ap- pointed for their deliver}-, if the vendee become insolvent and the vendor can repossess himself of the goods, before they have reached the hands of the vendee or the place of destination, he has a right so to do, and thereby regain his lien. This however does not rescind the contract, but only restores the vendor's lien, and it can only take place when the property has vested in the vendee. G22 ROWLEY V. BIGELOW. [CHAP. IV. "Wiihout considering wliat would have been tbe effect of the bill of lading in defeating the vendor's right to stop in transitu, had the place of destination been Boston, we are of opinion that upon another ground, the right did not exist in the present case. What does or does not constitute a journey's end, and the termina- tion of the transit, ma}', in man}' cases, be a question of difficulty and has often been a subject of discussion. But here we think it very clear, that a delivery of the corn on board of a vessel appointed by the ven- dee to receive it, not for the purpose of transportation to him, or to a place appointed by him to be delivered there for his use, but to be shipped by such vessel, in his name, from his own place of residence and business to a third person, was a termination of the transit, and the riglit of the vendor to stop in transitu was at an end. Noble v. Adains, 7 Taunt. 59. 4. It is contended that the defendants were not purchasers for a valuable consideration and bona fide, so as to be entitled to the bene- fit of the exception in their favor. But we are of opinion that they do stand in that relation, and are entitled to the benefit of it. It ap- pears that they advanced, either in cash or by the acceptance of Martin's drafts in favor of third persons, to an amount equal to the value of the goods, and that after having been furnished with bill of lading and invoice and in the ordinary course of business. The ground upon which the plaintiffs rely is, that at the time the bill of lading was signed, the corn was not on board, and in fact, as appears by a comparison of dates, had not been purchased of the plaintiffs. This was undoubtedly irregular; and if done by collusion between Martin and the master to enable the former to get money or credit on the bill of lading, was a gross fraud upon any person deceived by it. But it is not perceived how the plaintiffs can avail themselves of this, supposing it to be a fraud. A bill of lading is a contract of carnage for hire, b}^ which the master engages to deliver the goods to the shipper or his order, and so is ^'wasi-negotiable. It operates b}- wa}' of estoppel against the master and also against the shipper and indorser. The bill of lading acknowledges the goods to be on board, and regu- larly the goods ought to be on board befoi-e the bill of lading is signed. But if through inadvertence or otherwise, the bill of lading is signed before the goods are on board, upon the faith and assurance that they are at hand, as if they are received on the wharf ready to be shipped, or in the shipowner's warehouse, or in the shipper's own warehouse, at hand and ready, and afterwards they are placed on board, as and for the goods embraced in the bill of lading, we think, as against the shipper and master, the bill of lading will operate on these goods by way of i-elation and by estoppel. It is asked, how long after the signature of the bill of lading prop- erty may be delivered on board, so as to be bound by it and become the subject on which it shall operate. We think, at any time whilst SECT. III.] .. JOHNSON V. EVELETH. 623 the vessel is taking in her cargo for that voyage, as descrbed in the bill of lading, ^and before she sails upon it. Here there was a time when the bill of lading might have been properl3' signed b}' the master, namel}-, after the corn was delivered and before the vessel sailed ; and it is admitted that this was received as and for the corn mentioned in the bill of lading. And it can make no difference to the plaintiffs, whether the bill of lading was signed after this shipment, or a few dajs before, in anticipation of such shipment. Supposing, then, that when the goods were shipped, as against the shipper and master the bill of lading operated upon this propei-t}-, and would have bound the master to deliver it to the consignee, as we think it would, then, by the uniform course and practice of merchants, the bill of lading repre- sents the property, and any bona fide title for valuable consideration obtained by a transmission or negotiation of the bill of lading gives as valid and effectual a title to the goods as could be obtained by an actual delivery of the goods themselves. The defendants have shown such a title, and therefore the order of the court must be Judgment on the verdict} CHAELES F. JOHNSOi^, Assignee, v. JOHX H. EVELETH. Supreme Judicial Court of Maine, December 7, 1899. [Eeported i»93 Maine, 306.] Trover for the value of logs sold by the defendant to one Ware on credit. The logs were delivered by the defendant to the Kennebec Log Driving Company to be driven to Ware's mill. Ware, who had for a long time been insolvent, made an assignment to the plaintiff under the insolvent law. As soon as he learned of this the defend- ant resumed possession of most of the logs. Some scattering logs had already reached Ware's mill and had been sawed. Chas. F. Johnson, for plaintiff. W. T. Haines and If. D. Eaton, for defendant. Savage, J. The next question in this connection is, may the right of stoppage in transitu attach to logs being driven as these Avere. We have no doubt that it may. It may be conceded that the log-driving company is not a common carrier, although in some respects its duties are analogous to those of common carriers. See Mann v. White River Log, etc., Co., 46 Mich. 38, where the distinction is pointed out. But that is not decisive. When a vendor sends goods sold to the place of destination by private conveyance, the right of stoppage in transitu exists the same as if they are sent by common carrier. The vital ^ A portion of tlie opinion relating to the admissibility of evidence is omitted. 624 JOHNSON V. EVELETH. [CHAP. IV. question is, are they in transit between the vendor and the vendee. The right of stoppage in transitu is merely an extension of the lien for the price which the vendor has, after contract of sale and before delivery of goods sold on credit. The term itself implies that the goods are in transit, and that they have not come into the possession of the vendee. It permits the vendor to resume possession before the goods sold have come into the vendee's possession, if the latter has become insolvent. Whether they are in the possession of a carrier, strictly so called, while in transit, or whether they are in possession of a " middle-man," is immaterial. 2 Kent's Com. 702. In this case the logs were certainly in transit between the dam at East Outlet and Ware's mill. They were moving down the river. They were kept moving by the agency of the log-driving company. The company broke the jams, cleared the eddies and the banks of logs, took them wherever they became stranded, and drove in the rear. The company having assumed the duty of driving the logs, no one else had the right to interfere with the driving. So far as a mass of logs in a river is susceptible of possession, to that extent the log-driving company was in possession of these logs for the purpose of transporting them. And we think that was sufficient. It certainly accords with the equitable principles out of which the right of stoppage in transitu has grown. Newhall v. Vargas, 13 Maine, 93. The character of the possession of the log-driving company is only important as it shows that the logs had not come into the possession of the vendee, and were still in transit. Finally, the plaintiff contends, inasmuch as some smal\ portion of the logs had floated down to Ware's mill and had been received by him before his assignment, that this put him in constructive posses- sion of the whole mass, and terminated the transitus. We are unable to come to that conclusion. The surveyor's bill shows that there were 7663 sticks in the lot of logs purchased. The defendant, when he took possession, found 6815 sticks in the drive. It appears that some had gone below Ware's mill to Hallowell, and undoubtedly some sticks had been left behind, upon the banks or in the eddies of the river. But assuming that the whole of the remaining 848 sticks had, during the season, floated down to or by Ware's mill, still we do not think that that fact constituted a constructive possession in Ware, or the plaintiff, of the logs which had not come dowTi. It is not like the case where a vendee has taken some portion out of the whole mass, which was then susceptible of possession, and in which case he has thus obtained constructive possession of the whole. Such facts are important sometimes when it is necessary to decide whether a legal delivery has been made. But here, as we have said, it is not a ques- tion of technical delivery, but one of actual possession. Here Ware took only such scattering, floating logs as came to him. The remain- der were not in his possession. They were still in the possession of the log-driving company. They were still being driven. They were still SECT. III.] WHEELING & LAKE ERIE R. R. CO. V. KOONTZ. 625 in actual transit. And we think the vendor had the right to stop them before that transit was ended. Such a conclusion gives effect to the spirit and purpose of the law^ Buckley v. Furniss, 17 Wend. 504 ; Mohr v. Boston & Albany R. R., supra. Plaintiff nonsuit} THE WHEELING & LAKE ERIE RAILROAD COIMPANY v. KOONTZ ET AL. Ohio Supreme Court, January 30, 1900. [Reported in 61 Ohio State, 551.] Davis, J. The only right of the vendors, under the facts appear- ing in this case, if any, was to recover the possession of the car-load of lumber by stoppage in transitu. This they might do at any time while the lumber remained in the possession of the carrier, as carrier. It had been carried to its destination, but it is not claimed that any manual delivery had been made to the consignee. There was no de- livery to the consignee unless it was by construction. The facts which are claimed to constitute a constructive delivery, as they appear in an agreed statement of facts, are that the car arrived at its destination, Toledo, Ohio, on February 2, 1895 ; that the carrier notified the con- signee of the arrival of the lumber and that thereafter, up to and in- cluding February 7, 1895, the car, with the lumber remaining thereon, remained upon the yard track of the defendant in Toledo, for delivery to the consignee ; and that on or about the 7th day of February, 1895, the consignee sold the said car of lumber to the defendant for the sole consideration of a pre-existing indebtedness, which consisted of the freight charges on the car-load of lumber in question and other indebt- edness. These facts show no delivery, either manual or constructive, unless the sale by the consignee to the defendant implies it. It does not appear that the consignee paid the freight or in any manner put himself in position to demand and enforce the possession of the lum- ber ; nor does it appear that there was any agreement between the consignee and the defendant by which the former assumed the posses- sion of the lumber and constituted the latter his agent to hold and care for the same. But in'the absence of these necessary indications of a constructive delivery to the consignee, the defendant retained the 1 The statement of facts is abbreviated and only so much of the opinion printed as re- lates to two questions. G26 BLACKMAN ET AL. V. PIERCE. [CIIAP. IV. custody and control of the property under a sale which is based partly, on the consideration of the freight thereon, which must have been paid before a delivery could be presumed to have taken place, and partly on the consideration of other pre-existing debts, which were admitted by counsel on the oral argument to consist also of unpaid freight bills. Such a sale we do not think would constitute the defendant a bona fide purchaser ; and we are of the opinion that the lumber was still in tran- sit at the time when the plaintiffs gave notice of stoppage in transitu and tendered to defendant the freight due to it for the transportation of the lumber. The case having been twice reported heretofore (5 X. P., 15 ; 15 C. C, 288) it is unnecessary to review the authorities cited by counsel, nor to cite others. The judgment of the circuit court is affirmed} BLACKMAN et al. v. PIERCE. California Supreme Court, October Term, 1863. [Reported in 23 California, 508.] Crocker, J., delivered the opinion of the Court. — Norton, J., concurring. This is an action brought against Pierce, Church & Co., warehouse- men at Red Bluff, and Johns, the Sheriff of Tehama County, to recover the value of a lot of goods sold by the plaintiffs, merchants in San Francisco, to one McDaniel, of Trinity Center, Trinity County ; and which they claim by the right of stoppage in transitu, the purchaser having become insolvent after the sale of the goods. It appears that the goods were duly marked to McDaniel, care of Pierce, Church & Co., Bed Bluff ; that the plaintiffs shipped them on a steamer at San Fran- cisco, and they duly arrived at Bed Bluff, the point of transshipment from the river steamer to wagons, to be transported to their final destination ; that Pierce, Church & Co. put them in their warehouse, advised McDaniel of their arrival, and he wrote them that he would send a team after them ; that while they were thus in the warehouse 1 Farrell v. Richmond, &c., R. Co., 102 N. C. 390, ace. See also Ry. Co. v. Meador, 65 Ga. 705 ; Branan v. Atlanta, &c., R. Co., 108 Ga. 70. It is well settled that the fact that the carrier has ceased to hold the goods as carrier, and is holding them as warehouseman does not indicate that the transit is ended. Brewer Lumber Co. v. Boston & Albanv R. Co., 179 Mass. 228 ; Reynolds r. Boston & Maine R. Co., 43 X. H. 580 ; Farrell v. Richmond, &c., R. Co., 102 N. C. 390 ; Hoover v. Tibbits, 13 AYis. 79 ; Jeffris v. Fitchburg R. Co., 93 Wis. 250 ; Howell v. Alport, 12 U. Can. C. P. 375. Nor is the payment of freight conclusive. Coventry v. Gladstone, L. R. 6 Eq. 44 ; Reynolds v. Bostou & Maine R. Co., 43 N. H. 580 ; Howell v. Alport, 12 U. Can. C. P. 375'. SECT. III. J BLACKMAN ET AL. V. PIERCE. 627 at Eed Bluff an attachment was levied upon them by the sheriff, issued in an action brought by one Fuller against McDaniel ; that after the purchase of the goods McDaniel became insolvent, and the price re- mained unpaid ; that after the levy the plaintiffs, by their agent, gave notice to the warehousemen and the sheriff that McDaniel had become insolvent ; that the goods had been sold to him by them ; that the price was unpaid, and that they claimed the right of stoppage in tran- situ, and demanded the goods of them, and they refused to deliver them. The right of a vendor who has sold goods on credit, when the ven- dee is insolvent, to stop and take them into his possession, at any time before their arrival at the place of destination, and going into the actual or constructive possession of the purchaser, is well estab- lished. Depositing them at an intermediate point, with an agent of the purchaser, for the purpose of being forwarded, does not terminate the transitus. Markwald v. His Creditors, 7 Cal. 213. It is clear, therefore, that the mere fact that the goods had come into the posses- sion of Pierce, Church & Co., to be forwarded to the purchaser, did not terminate the transitus or divest the plaintiffs of their right of stoppage in transitu. This right of stoppage in transitu is paramount to any lien on the goods claimed by third persons against the purchaser. Thus it may be exercised to defeat an attachment or execution levied upon the goods by a creditor of the vendee ; ^ for the lien acquired by the levy operates only upon the interest of the debtor, but cannot defeat the paramount right of a stranger. (Hilliard on Sales, 217.) The Court found that the warehousemen stated to plaintiffs' agent, at the time of the demand, that they had no charges upon the goods. This was stated in reply to a question of the agent, who told them he was ready to pay their charges if any they had. By this, the warehousemen waived their lien for charges, if they had any. (Everett v. Saltus, 15 Wend. 474 ; Everett v. Cofhn, G Id. G08 ; Saltus v. Everett, 20 Id. 268.) The judgment is affirmed. I Mason v. Wilson, 43 Ark. 172; White v. Mitchell, 38 Mich. 390; Calahan v. Babcock, 21 Ohio St. 281; Allyn v. Willis, 65 Tex. 05; Harris v. Tenney, 85 Tex. 254. The right of the seller prevails also over a lien of the carrier by custom or contract for a general balance due from tiie consignee. Oppenheim v. Russell, 3 Bos. & P. 42; Farrell v, Rich- mond, &c., R. Co., 102 N. C. 390. 628 NEAVHALL V. CENTRAL PACIFIC R. R. CO. [CIIAP. IV. NEWHALL V. CENTEAL PACIFIC E. E. CO. Supreme Court of California, July, 1876. [Reported in 51 California, 345.] AcTiox to recover the value of merchandise, alleged to have been converted by the defendant to its own use. Cainpbell, Fox & Caviphell, for the appellant. W. H. Rhodes and S. M. Wilson, for respondent. Crockett, J. This case comes up on the findings, and tliere is, there- fore, no controversy as to the facts ; the only question being, whether the plaintiffs are entitled to judgment on the facts found. The facts necessar}' to a correct understanding of the only question of law in the case are, that a mercantile firm in New York sold certain merchandise on credit to a similar firm in San Francisco, and shipped the same in the usual course of business, b}' railvva}-, to the vendees as consignees, under bills of lading in the usual form. The bills of lading were re- ceived at San Francisco by the consignees before the goods arrived ; and while the merchandise was in transit, in the custody of the defend- ant as a common carrier, the consignees failed, and became insolvent, and thereupon the vendors notified the defendant in writing that they stopped the goods in transitu/ that the vendees had become insolvent, and the goods were not paid for, and that the\' must not be delivered to the consignees, but to the vendors. The plaintifll's then were, and for man}" years had been, auctioneers and commission merchants, doing business in San Francisco, and had been in the habit of receiving from the consignees bills of lading and goods under them, for sale on com- mission. 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 goods named therein, " advanced a sum of mone}' to the consignees 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 the time of the indorsement and transfer of the bills of lading to the plaintiffs, the}' had no notice that the con- signees were in failing circumstances, or had failed, or that any notice of stoppage in transitu had been served upon the defendant. AVhile the goods were still in the possession of the defendant as a common carrier, the plaintiffs, as holders, exhibited to the defendant 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 importance, it has been discussed by counsel, both orallj' and in printed arguments, with SECT. III.] NEWHALL V. CENTRAL PACIFIC R. R. CO. 629 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 decisions, both in England and America, to the effect that where goods are consigned by the vendor to the vendee, under bills of lading in the usual form, as in this case, an attempt b}' the vendor to stop the goods in transitu will be unavailing as against an assignee of the bill of lading, who took it in good faith, for a valuable consider- ation, in the usual course of business, before the attempted stoppage. The leading case on this point is Lickbarrow v. Mason, 2 Term R. 63, the autiiority of which has been almost universally acquiesced in b}' the the courts and text-writers, in this country and in England. There being little or no conflict in the authorities on the point adjudicated in that case, it would be useless to recapitulate them here. But it is im- portant to ascertain the principles which underlie these decisions, that we may determine to what extent, if at all, they are applicable to the case at bar. The first, and, as I think, the controlling point deter- mined in these cases, is, that by the bill of lading the legal title to the goods passes to the vendee, subject only to the lien of the vendor for the unpaid price ; which lien continues only so long as the goods are in transit, and can be enforced only on condition that tlie vendee is or becomes insolvent while the goods are in transit. On the failure of each of these conditions, the right of stoppage is gone and the lien ceases, even as against the vendee. But it is further settled by these adjudications, that if the bill of lading is assigned, and the legal title passes to a bona fide purchaser for a valuable considera- tion before the right of stoppage is exercised, the lien of the vendor ceases as against the assignee, on the well-known principle that a secret trust will not be enforced as against a boi^a fide holder for value of the legal title. In such a case, if the equities of the vendor and assignee be considered equal (and this is certainly the light most favoral)le to the vendor in which the transaction can be regarded), the rule applies that where the equities are equal the legal title will prevail. But in such a case it would be difficult to maintain that the equities are equal. The vendor has voluntarily placed in the hands of the vendee a muni- ment of title, clothing him with tlie apparent ownership of the goods; and a person dealing witli him in the usual course of business, who takes an assignment for a valuable consideration, " without notice of such cir- cumstances as render the bill of lading not fairly and honestly assign- able," has a superior equity to that of the vendor asserting a recent lien, known perhaps, only to himself and the vendee. Brewster v. Sime, 42 Cal. 130. These being the conditions which determine and control ilio I'olative rights of tlie vendor and assignee, where the assignment is made before the notice of stoppage is given, precisely the 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 630 DIEM V. KOBLITZ. [CHAr. IV. vendor's lien continues to be onl}' a secret trust as to a person, who, in the language of Mr, Benjamin, in his work on Sales, section 8GG, takes an assignment of a bill of lading " without notice of such circumstance as renders the bill of lading not fairly and honestly assignable." The law proviiles no method by which third persons are to be affected with constructive notice ol acts transpiring between the vendor and the car- rier ; and in dealing with the vendee, whom tlie vendor has invested with the legal title and apparent ownership of the goods, a stranger, advancing his money on tlie faith of this apparently good title, is not bound, at his peril, to ascertain whether, possibly, the vendor ma}- not have notified a carrier — it ma}' be on some remote portion of the route — that tlie goods are stopped in transitu. If a person, taking an as- signment of a bill of lading, is to encounter these risks, and can take the assignment with safety only after he has inquired of the vendor, and of every carrier through 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 monej' on such securi- ties, and a verj' important class of commercial transactions will be prac- ticall}' abrogated. In my opinion the judgment should be affirmed, and it is so ordered. Judgment affirmed. DIEM V. KOBLITZ. Supreme Coukt of Ohio, January 19, 1892. [Reported in 49 Ohio St. 41.] Error to the Superior Court of Cincinnati. The action was brought by Koblitz Brothers against Frederick J. Diem, and the declaration set forth that on August 15, 1894, the de- fendant sold the plaintiff a quantity of paper bags for $3,084.80, to be paid in equal portions in thirty, sixty, and ninety days. The defendant set apart the goods and delivered a large portion to a carrier for ship- ment to the plaintiff in Cleveland, but on August 23, 1884, he cancelled the sale and disposed of the goods. The plaintiff had agreed to resell the goods at an advance of twentj'-five per cent, and being unable to carr}- out that sale was greatl}' injured. The defendant's answer denied the allegations of the declaration and alleged that the plaintiffs were insolvent when he stopped the goods in the carrier's hands. The plaintiffs' replication denied the allegation of insolvenc}', and stated that they were read}' and willing to pay for the goods, and had accepted drafts for the price. ^ The cause was tried to a jury, and a verdict obtained by the plain- tiffs, upon which judgment was subsequently rendered. On the trial, the court excluded evidence offered by the defendant, to prove that at * The statement of the pleadings has been abbreviated. SECT. III.] DIEM V. KOBLITZ. 631 the time of the purchase of the goods described in the petition, the plaintiffs were insolvent, and their commercial paper had gone to pro- test ; and ruled, that there was no " question of insolvency in the case ; " that the action was " simply an action for the non-performance of a con- tract ; " that the answer admitted " the non-performance," and that there was " nothing left but the measure of damages." The court accordingly instructed the jury as follows : — "In this case the making of the contract to sell, and the fact that the goods were not delivered, but were sold to another party before the time when any of the drafts became due, is admitted, and that in my judgment constitutes a breach of the contract, so that the only questions that remain for the consideration of the jury are those which relate to the damages, if there were any, to Koblitz Brothers, by reason of the failure to deliver the goods." And the following instruction requested by the defendant was refused : — " If the jury find that plaintiffs at the date of said contract were insolvent, or had committed an overt act of insolvency b}' stopping the paj-ment of their commercial paper, and defendant having been in- formed of said insolvency, and by reason thereof stopped the transit of said goods, and took possession of the same, then they will find for defendant unless they find that plaintiffs tendered performance of said contract after said stoppage. in transit existed." Exceptions were taken by the defendant to the foregoing rulings of the court, the instructions to the jury, and the refusal to instruct as requested, which were embodied in a bill of exceptions duly allowed and made part of the record. A motion of the defendant for a new trial was overruled, and he pros- ecuted error to the general term, where the judgment of the special term was affirmed, and to obtain the reversal of the judgments below he prosecutes error to this court. Thomas McDougall, for plaintiff in error. Henry C. Oettinr/er, and Frank Seinsheimer, for defendant in error. Williams, C. J. The contract of the parties, as shown by the plead- ings, was one for the sale of goods on credit ; the plaintiffs agreeing to give their commercial paper for the purchase price, payable at the times stipulatoai;gher, and by false representations assumed to take possession of said lum- ber." Such a wrongful and fraudulent dispossession did not operate to extinguish the seller's lien. " The change of possession must be voluntary to constitute a waiver of the lien. Therefore, where such a change is effected by force or fraud, or without the consent of the lienholder, the lien is not thereby determined." Am. & Eng. Encyc. 644 McGILL V. CHILHOWEE LUMBER CO. ET AL. [CIIAP. IV. of Law (2d Ed.), vol. 19, p. 27 ; Caldwell v. Tutt, 10 Lea, 259, 43 Am. Rep. 307 ; Mechem on Sales, vol. 1, § 153. It is also true that the Youmans Liunber Company was entitled to regain this possession from the wrongdoer. " So, if by artifice or evasion the buyer obtained possession of the goods, as upon a promise or understanding of immediate payment, which afterwards is evaded or denied, the seller, who has done nothing to estop himself or waive his right, may regain possession by virtue of his lien as against any one but a bona fide purchaser for value." Mechem on Sales, vol. 2, § 1490; Am. & Eng. Encyc. of Law (2d Ed.), vol. 19, p. 35. The Court of Chancery Appeals has found as a fact that the South- ern Brass & Iron Company was not an innocent purchaser, and this exception to the rule is therefore eliminated from this case. In re- spect of the remedy of the lienholder to recover the possession of this property, the law is thus stated, viz. : " If the property is wrongfully taken from the custody of the lien- holder by a third person, the lienholder's remedy is by an action to recover the possession or for a wrongful conversion. In the latter ac- tion the measure of damages is the amount of the lien, not exceeding the value of the property." Am. & Eng. Encyc. of Law (2d Ed.), vol. 19, p. 35. The Court of Chancery Appeals, as already stated, adjudged liabil- ity against the Southern Brass & Iron Company for the net amount realized by the latter company from its sale of the lumber in Knox- ville, upon the ground that at the time of its purchase from the Chil- howee Lumber Company the lumber had not been delivered to it by the Youmans Company. Now it is insisted on behalf of the Youmans Company that the Southern Brass & Iron Company should also be held liable for the 6,000 feet of lumber washed away by the floods, for the reason that at the time of said loss the legal title to the 6,000 feet was vested in the Southern Brass & Iron Company under its purchase from the Chil- howee Company. This contention is based upon the theory that, although the Youmans Company exercised its right of stoppage in transitu, the sale was not thereby rescinded, but the title to the lum- ber remained in the Chilhowee Lumber Company under the original purchase, and therefore the legal title to the 6,000 feet of lumber passed from the Chilhowee Company to the Southern Brass & Iron Company under its contract of purchase. We are unable to concur with counsel in this contention. It is very jjlain to us that the Chilhowee Company could not communicate a title to the Southern Brass & Iron Company to the lumber in question, for the reason that said lumber had never been legally de- livered by the Youmans Company to the Chilhowee Company ; and it is very clear that until the Chilhowee Company had the right of pos- session it could not communicate a title to any purchaser. The full SECT. III.] McGILL V. CHILHOWEE LUMBER CO. ET AL, 645 scope and meaning of the doctrine announced by Mr. Mechem in his text, and other authorities cited, where the same principle is affirmed, is that the seller is not to be prejudiced by the exercise of his right of stoppage in transitu, but may enforce his contract of sale against the purchaser. Until the seller has relinquished his right of posses- sion to the purchaser, the latter cannot, of course, communicate any title to the property so as to defeat the seller's lien. We are therefore of opinion that the Southern Brass & Iron Com- pany cannot be held liable for the loss of the 6,000 feet of lumber washed away by high water, upon the theory that it owned the legal title to the lumber. We are further of opinion that, since the South- ern Brass & Iron Company exercised no acts of ownership over this 6,000 feet, and did not remove it, but left it standing where it was originally deposited by the Youmans Company, it cannot be held liable as for a conversion. Moreover, it appears from the finding of the Court of Chancery Appeals that the Southern Brass & Iron Com- pany was enjoined, at the instance of the receiver of the Chilhowee Company, against removing that lumber, or exercising any acts of ownership over it, at the very time the lumber was swept away. The decree of the Court of Chancery Appeals will be modified as herein indicated and affirmed. 646 LOKYMER V. SMITH. [CHAP. V. CHAPTER V. SPECIAL RIGHTS AND EEMEDIES OF THE BUYER. SECTION I. Inspection. LORYMER V. SMITH. In the King's Bench, November 8, 1822. [Reported in 1 Barnewall and Creswell, 1.] Assumpsit for not accepting two parcels of wheat, one containing 700, the otlier 1400 bushels. Plea, general issue. At the trial before Bayley, J., at the last summer assizes for Gloucester, it was proved that on the 11th of September, 1821, a contract for the wheat was made between the parties at Bristol, and bought and sold notes were exchanged. They were in the following terms: "Bought of James Lorymer, 700 bushels of wheat, 1400 ditto, ditto, at 9s. 6d. per bushel, according to samples, banker's bill if required." By the usage of the place the buyer had a right to inspect the wheat in bulk. On the 19th of September the defendant went to the plaintiff's warehouse and desired to see the wheat ; the parcel containing 700 bushels was shewn to him, but the remaining 1400 bushels were not in the plaintiff's warehouse. Plaintiff oifered to send a load to the defendant for his inspection, or to send for a bushel at that time, but declined shewing the whole, saying that he did not choose to let defendant into his connexions. The latter replied, that under those circumstances he would not have the wheat ; a banker's bill was not at that time ten- dered or demanded. A few days afterwards defendant having sent to the plaintiff respecting some oats, the latter informed the messenger that the 1400 bushels of wheat were then in his lofts, and might be inspected ; and that the whole was ready, and would be delivered upon banker's bills being given for the price. The learned Judge thought that the plaintiff had put an end to the contract, by refusing to shew the wheat in bulk when requested to do so on the 19th of Sep- tember, and by his direction a verdict was found for the defendant. And now, W. E. Taunton moved for a new trial. SECT. I.] LORYMER V. SMITH. 647 Abbott, C. J. It appears that, by the usage of the place, the buyer had aright to mspect the wheat in bulk; which is so reasonable, that, without any such usage, the law would give him that right. Here, on the 19th of September, the buyer desired to see the whole of the wheat in bulk, but the seller refused to shew it ; upon that refusal, the request having been made at a proper and convenient time, the buyer was entitled to rescind the contract. If this were not so, a man might bargain to deliver corn not then in his possession, and rely upon making a future purchase in time to fulfil his undertaking ; but that is a mode of dealing not to be encouraged. Bayley, J. I am of the same opinion. HoLKOYD, J. The buyer had a right to inspect the wheat in bulk, in order to ascertain whether it corresponded with the sample, and might have insisted upon having it delivered immediately upon tendering a banker's bill for the price. The seller not being ready to complete his part of the contract on the 19th of September, when he was re- quested to shew the wheat, cannot afterwards insist upon perform- ance by the buyer. Best, J., concurred. Rule refused} 1 In Charles v. Carter, 96 Tenn. 607, the court held that the following instructions to the jury should have been given : '''6. If you find that the conduct of the plaintiff and his agents at Kansas City was such, that they declined and refused to permit an inspection of the potatoes by the defendant within a reasonable time after their arrival in Kansas City, and an inspection thereof was, in consequence, not made, then it was no longer the duty of the defendant to take such potatoes, and you must tind for the defendant. "7. The Court further charges you that it becomes a question of fact for you to deter- mine what would be a reasonable time for the defendant to inspect these potatoes, and, in determining what was a reasonable time, you will consider the per-ishable nature of the property itself, the length of time it had been barreled up and confined in a railroad car, as well as the season of the year and condition of the weather at the time." 648 PETTITT V. MITCHELL. [CHAP. V. PETTITT V. MITCHELL. In the Common Pleas, November 14, 16, 1842. [Repoi'ted in 4 Manning if 9 Granger, 817.] TiNDAL, C. J. This is a rule obtained by the defendant, calling on the plaintiff 'to shew cause why a verdict should not be entered for him, the defendant, or why there should not be a new trial. It is the case of a sale of goods by auction ; and the first part of the rule is grounded upon two conditions, which are set forth in the third and fourth pleas, and which, it is insisted on the part of the defendant, are implied by law, in addition to the printed conditions under which the sale took place. It is said that in the case of a sale under such circumstances as the present, the law will imply a right on the part of the purchaser, before payment of the purchase money, to inspect and to -measure the articles bought, in order to enable him to see whether they conform with the description of them given in the printed catalogue of sale. The first question is. whether in a sale by auction circumstanced as this case is, the law will imply such conditions or either of them ; and I think it will not. The stress of the case is, whether the purchaser has the right to inspect and measure the goods before payment of the money ; for it is not denied that he may do so before he takes them away and, if the measurement should turn out to be short, that he would be entitled to a deduction from the purchase money. An argument has been raised on the part of the defendant, upon the cases of Howe v. Palmer and Lorymer v. Smith, that by law a pur- chaser may rescind the contract if he is not permitted to inspect the commodity he has purchased; but in both of those cases the purchase was by sample, and the commodity was in bulk, and therefore it was held, that the purchaser had a right to see that the bulk corre- sponded with the sample. But the present is not the case of the pur- cbase of an uncertain quantity or of a certain quantity out of an uncertain bulk, but it is the purchase of a certain thing, which the purchaser has a right and power to inspect before the sale. There is also the circumstance of the measurement being made in the first instance, not by the seller himself, but by a third party, the auction- eer, who stands as a middle man between the parties ; which consti- tutes a material difference between such a case as the present and that of a sale in a shop. If the law is called upon to impose a condition in such a case, it will look to the convenience of a rule sought to be introduced ; and it will not impose a condition where the preponder- SECT. I.] PETTITT V. MITCHELL. 649 ance of iu convenience would be against it. It appears that in this sale there were 488 lots sold ; and it certainly would seem that the in- convenience would be greater if there were to be established a right on the part of each purchaser to measure any lot before payment of the purchase money. The purchasers may be unknown persons, and the stake is much greater on the part of the auctioneer who is a known person of responsibility ; and it is not likely that any thing more than a small quantity will be in dispute between the parties. Upon prin- . ciple, therefore, I am of opiniou, that in a sale of this sort, no such conditions are to be imported as those set up by the defendant. j In this case, too, there are printed conditions of sale, and it appears to me that the conditions sought to be imported would materially vary those that are printed. By these it is stipulated that a deposit is to be made in the first instance, and that the remainder of the pur- chase money is to be paid " before the delivery " of the goods ; that is, according to the evidence, before the delivery order is given and the goods are handed over to the purchaser. That the term "deliv- ery " in the fourth condition does not mean the same as " taking away," clearly appears by the following paragraph of the same condi- tion which stipulates that " warehouse room will be charged on all lots left uncleared after the time specified, until such lots are taken away, or resold." There are therefore three things to be done ; the payment of the remainder of the price, the delivery of the article, and the clearing or taking it away — which are each distinct and separate ; and I can readily understand that the auctioneer may have intended by this contract to avoid frivolous objections and the inconvenience that would ensue from a different course. As to the motion for a new trial, it appears that there was evidence on both sides. The witnesses called for the defendant state that on the occasion of different purchases at sales by auction, they have inspected the goods, they have bought, before payment of the price ; but they do not produce the conditions of sale under which such pur- chases were made ; and it may have been a mere favour to them that they were permitted to make the inspection. Upon the whole, there- fore, I am of opinion that this rule must be discharged. ^ ^ COLTMAN, Ehskine, and Maule, JJ., delivered concurring opinions. 650 ISHERWOOD V. WHITMORE. [CHAP. V. ISHERWOOD V. WHITMORE, and others, Assignees of JARRATT. In the Exchequer, April 28, 1843. [Reported in 11 Meeson tf Welsby, 347.] Assumpsit. The first count of the declaration stated, that before and at the time of the making of the agreement next thereinafter mentioned, the plaintiff was possessed and had possession of divers goods, to wit, 2000 hats, of the value, to wit, of £1000, which goods then were the property of the defendants, subject to a lien which the plaintiff then had thereupon, the said lien then being of great value, to wit, of the value of £250 ; and thereupon, before the commence- ment of the suit, to wit, on the 23rd day of July, 1842, it was agreed between the plaintiff and the defendants, that the plaintiff should de- liver up to the defendants the said goods and abandon his said lien thereon, and that the defendants should therefore pay the plaintiff the sum of £250 upon the delivery of the said goods to the defendants. The declaration then alleged mutual promises, and averred that after the making of the said agreement and promises, and before the com- mencement of this suit, to wit, on the day and year last aforesaid, the plaintiff was ready and willing and then tendered and offered to de- liver up the- said goods to the defendants, and to abandon his said lien thereon, and then requested the said defendants to accept the said goods and the said abandonment of the said lien of the plaintiff, and to pay the plaintiff the said sum of £250; and although the plain- tiff had always performed tlte said agreement in all things on his part to be performed, yet the defendants, not regarding, &c., did not nor would, when they were so requested, or at any time before or since, accept the said goods or any of them, or the abandonment of the said lien of the plaintiff, or pay the plaintiff the said sum of £250 or any part thereof, but then and always neglected and refused so to do. There was a second count upon an account stated. The defendants pleaded, first, non assumpserunt ; secondly, a traverse of the tender of the hats, as alleged in the declaration. At the trial before Lord Aeinger, C. B., at the London sittings after last term, it appears that the hats originally belonged to one Arthur Jarratt, who had become bankrupt, and the defendants were his assignees. Jarratt had, previously to his bankruptcy, deposited these hats with the plaintiff, who had a lien upon them for £250, the amount claimed. A long correspondence took place between the plaintiff and defendants after the bankruptcy, and which was given in evidence, by which it was agreed that the defendants should discharge the lien and SECT. I.J ISHEEWOOD V. WHITMOKE. 651 take the hats. The defendants accordingly went for the hats to a wharf where, as they had been previously informed, the hats would be delivered to them on payment of the money ; and were there shewn two closed casks, which they were told contained the hats, but the persons who had the charge of them refused to allow the defendants to open the casks or to inspect their contents. On this state of facts, it was objected for the defendants that in order to make out the alle- gation in the declaration that a tender had been made, it ought to have been shewn that the hats were offered in such a way that the defendants had an opportunity of inspecting them. The Lord Chief Baron, reserving leave to the defendants to move to enter a nonsuit, left it to the jury to say whether they were satisfied that the de- fendants had by the contract, as collected from the correspondence, agreed to take the hats without requiring an inspection of them or not, and they found that the defendants were not to have an in- spection of them, and gave their verdict for the plaintiff, with £250 damages. M. D. Hill having obtained a rule to enter a nonsuit on the point reserved, or for a new trial, on the ground that the learned Judge had misdirected the jury in leaving to them the question whether there was an agreement to take the hats without inspection, there being no evidence of such a contract ; Piatt and Byles, Serjts., now shewed cause. — A party tendering goods in pursuance of a contract is not bound to allow an inspection of them in the first instance, and if the party to whom they are offered refuses to receive them, he does so at his peril. It is otherwise where there is a contract for the purchase of goods by samjile, in which case the buyer is always entitled to inspect the bulk before he can be com- pelled to pay for it. But when a chattel is identified by description, as was the case here, no such right exists, for the property passes by the contract. [Pakke, B. — There is here no question about the passing of the property ; for inasmuch as the plaintiff claims only a lien upon the hats, they are admitted to have belonged to the defend- ants from the beginning. The casks might have contained nothing, or anything else than the hats. Ought you not to have given the parties a reasonable opportunity of seeing whether or not the hats were there ? There is nothing to shew any contract that he was to purchase the hats without looking at them. Aldekson, B. — It is clear they agreed to buy the hats without reference to the quality; but does it follow that they were to do so without seeing them ?] But although there may be a right of inspection, it does not merely follow that it is a condition precedent; and an inspection in this case would have been attended with much inconvenience, as it could not have been had without taking out all the hats, which would amount 652 :SIIERWOOD V. WHITMOKE. [CHAr. V. ' to several thousands. In Pettit v. Mitchell/ it was held that the pur- chaser of goods at an auction is not entitled to measure them before he paid the money. [Parke, B. — In that case the purchaser had an opportunity of inspecting the lots before they were put up for sale, as two days were given to inspect the articles before the day of sale.] In the present case the jury have found that by the terms of the con- tract the defendants were not to have an opportunity of inspection. [Parke, B. — Yes, but the meaning of that was, that they were not to have the option that ordinary persons have ; that is, without inspec- tion so as to ascertain the value.] The defendants in making the agreement relied upon the honour of the plaintiff to deliver the article correctly and according to contract, and the jury must be taken as find- ing affirmatively the existence of such a contract. M. D. Hill, Ball, and Gale, in support of the rule, were stopped by the Court. Parke, B. — It is perfectly clear in this case that there was no ten- der of these goods. A tender of goods does not mean a delivery or offer of packages containing them, but an offer of those packages, under such circumstances that the person who is to pay for the goods shall have an opportunity afforded him, before he is called on to J part with his mone}^, of seeing that those presented for his acceptance are in reality those for which he has bargained. We so decided when this case was before us on the argument of the demurrer, and by which decision we mean to abide.^ This case is quite distinguishable from that of Pettit v. Mitchell, which has been relied on by the plain- tiff ; for looking at the contract of sale in that case, it was evidently part of the agreement between the parties, that after the sale the lots were to be taken away by the purchaser without any further inspec- tion. The next question here however is, whether the Lord Chief Baron was right in leaving it to the jury to say whether there had been a special contract to take these goods without any inspection, to see if the)'- were really those bargained for. I am satisfied that he did not mean to put the question to them in that sense ; there was nothing in the case to warrant his doing so ; but that they were to say whether the assignees were to have the ordinary opportunity to which persons purchasing articles are entitled, namely, of inspecting the articles they have delivered to them, in order to see whether they were of the right quality, or whether, on the contrary, they were not to take the articles such as they were delivered to the plaintiff by the bankrupt Jarratt, and on which the plaintiff had a lien. If, how- ever, it is said that the Lord Chief Baron left to the jury to say whether the assignees had agreed to take whatever the cask might 1. Law J., vol. 12, N. S., C. P. 9. 2 10 M. & W. 757. SECr. I.] ISHERWOOD V. WHITMOEE. 653 have contained, I do not think there was any warrant for his leaving such a. point; but, as I have said before, I am satisfied he did not mean that, but merely that they were not to have an opportunity of seeing if the articles were merchantable. That appears to me to be the true question, and the verdict of the jury affirming that pro- position was perfectly right and amounts to a finding that the defendants were to take these hats, whatever their quality. An authority for this position is furnished in Co. Litt. 208 a, where it is said, " the feoffee may tender the money in purses or bags, without shewing or telling the same, for he doth that which he ought, viz. to bring the money in purses or bags, which is the usual manner to carry money in, and then it is the part of the party that is to receive it to put it out and tell it." For that position Wade's case ^ is cited as an authority, and shews that the party to whom the tender is made ought to have an opportunity of seeing the money or goods which are the subject of it. The verdict for the plaintiff on the first plea must therefore remain, but on the plea of tender it must be entered for the defendant. Alderson, B. — I am of the same opinion. The jury have found by their verdict, and I think reasonably and properly found, that the bargain between these parties was, that the assignees were to take the hats in the actual condition in which they then were, provided that those sent were the very identical hats received by Isherwood from the bankrupt. Provided that condition was complied with, the as- signees were bound to take the hats in whatever condition they might then be, and would have no right to inspect them for the purpose of seeing that they were then in a marketable state. Such is in sub- stance the finding of the jury ; and I think that on these pleadings it , was necessary to satisfy them, that the defendants, before they were required to pay down the money, had an opportunity of inspecting |the articles, in order to see that they were the same hats. It appears from the evidence that they were sent in two covered cases, and the question comes to this, were the assignees bound to take the word of Isherwood that those hats really were contained in those cases, or had they not a right to see that Isherwood spoke the truth in this respect, before they were called on to pay for the article, although they could not object to the quality of it ? RoLFE, B,, concurred. Hule absolute. 1 5 Rep. 115. 654 LINCOLN V. GALLAGHER. [cHAP. V. BENJAMIN LINCOLN v. DANIEL GALLAGHER. Supreme Judicial Court of Maine, February 28, 1887. [Reported in 79 Maine, 189.] This was an action of assumpsit for damages on a breach of contract for the purchase and sale of thirty-five sixty-fourths of the schooner Annie Gus of Dennysville, Maine. The defence was that the schooner was not delivered by plaintiff to defendant in a reasonable time, and that the defendant had no oppor- tunity to examine the vessel in order to see that she was in good order as stipulated in the contract. Thomas L. Talbot, for the plaintiff. John F. Lynch, for the defendant. Peters, C. J. It was said in Howard v. Miner, 20 Maine, 330, that on a contract for the delivery of specific articles which are pon- derous or cumbrous, when it is not designated in the contract, and there is nothing in the condition and situation of the parties to deter- mine the place of delivery, it is the privilege of the creditor to name a reasonable and suitable one ; that the debtor should request the cred- itor to select the place, and if the creditor fails to do so, the debtor may appoint the place. In the ease at bar a vessel was purchased on the eastern coast some- where, to be delivered to the buyer in Portland. Had the defendant provided a suitable place at some dock or wharf, which could have been reached by the use of reasonable exertion, the delivery should have been made there. The purchaser, after notice, failing to provide a place, we think the seller would be justified in tendering a delivery at safe anchorage in the harbor. He should not be required to go to special expenses to himself to obtain a place at the wharf or upon the shore. By the bill of exceptions, examined with the judge's charge, we find that a controversy arose between the parties over the requirement of the purchaser that the seller should go to the expense himself of placing the vessel in a dry dock in order that the seller could there ex- amine her. There was some reason to suspect that the vessel had been ashore on her voyage to Portland, and the purchaser desired an inspec- tion to see whether she had escaped injury or not. There can be no doubt that, in offering delivery, the seller was under obligation to afford an opportunity to the purchaser to make the ex- amination. But any expenses to be incurred thereby, beyond what would be necessary in putting the vessel in a proper place for delivery, would fall upon the buyer and not upon him. The seller was under SECT. I.] DOANE ET AL. V. DUNHAM. 655 no obligation to incur any unusual expense. He could not be called upon to place the vessel in a dry dock. He tenders the property as sound, according to the agreement under which he acted. The buyer must accept or reject it at his risk. Benj. Sales, § 695. Croninger v. Crocker, 62 :t^. Y. 151. Exceptions overruled. Walton, Daxforth, Emery, Foster and Haskell, JJ., con- curred. JOHN W. DOANE et al. v. JOHN H. DUNHAM. Illinois Supreme Court, September Term, 1875. [Reported in 79 Illinois, 131.] Mr. Justice Walker delivered the opinion of the court : This case was previously before this court, and is reported in 65 111. 512. The facts presented by this record do not vary materially from those stated in the opinion, as reported, except there seems to be a conflict of evidence on the last trial as to the length of time the sugar was retained by appellants before it was examined, found to be different from that intended to be purchased, and the notice to take it back. When the case was formerly before us, it was held that this was an executory contract, and after the sugar was received appellants were entitled to a reasonable time within which to make an examination, and to give notice to remove the sugar ; and that whether the notice was given in apt time was a question to be determined by the jury, in the light of all the attending circumstances, and, of course, with pro- per instructions from the court. Appellee having again recovered a judgment for the supposed value of the sugar, appellants again bring the record to this court, and seek a reversal, upon the grounds that the court below gave improper in- structions on behalf of appellee, and refused to give proper ones asked by appellants. An examination of those given, of which complaint is made, fails to disclose error. They inform the jury that there should have been an examination of the sugar, and a notice to take it back, within a reasonable time, considering all the circumstances. This is, no doubt, true, as a legal proposition. Even under clear and satisfactory evi- dence that it was the general and uniform usage for the kind of goods in question never to be examined until the wholesale merchant sold to his customer, the proposition is correct. If such was the usage. 656 DOANE ET AL. V. DUNHAM. [CIIAP. V. aud both parties dealt with reference to it, then it would, according to such usage, be within a reasonable time to examine it when offered for sale by appellants. But the rule, no doubt, has the limit that it must be so offered in due course of trade. A person who should buy as speculation, or with the intention of holding it for sale at a distant period of time, could not claim its benefits. It could only be applied in cases falling within the general course of trade. The court below refused to instruct for appellants, that : "If the jury believe, from the evidence, that it is not the custom among wholesale dealers in Chicago, engaged in business as defend- ants were, to examine sugar of the kind and quality sold by plaintiff to the defendants, upon receiving the same in store, or upon sale of the same to customers, and that it was not customary for such sugar to be examined until opened by dealers to sell from to customers, and that the sugar was damaged when it was delivered, and not of the quality sold them, the jury are to take into consideration all of these facts and things in determining whether defendants gave plain- tiff notice, within a reasonable time, to take back said sugar; and if they find therefrom that they did, then they must find for the defendants." If such was the uniform custom, understood and acted upon by the trade in Chicago, then it is but a fair presumption that the parties acted upon it, and should be governed by it. There was sufficient evidence upon which to base the instruction, and it should have been given. Appellants asked, but the court refused to give, this instruction : " If the jury believe, from the evidence, that, according to the well- established usage and custom of trade among wholesale dealers in standard powdered sugar in Chicago, the same is sold and handled in original packages, and no examination is made as to quality or condi- tion thereof upon purchase or sale thereof, and that the plaintiff w^as familiar with said usage and custom, and had long been in the habit of handling and dealing in said sugar in Chicago, and that the sugars in question were not examined by either parties Avhen taken from plaintiff's store ; and if the jury also believe, from the evidence, that said sugar was caked when so taken from plaintiff's store, and not in the condition contemplated by either plaintiff or defendants, and that the defendants dealt with said sugars pursuant to said usage and cus- tom, and that as soon as they found out that said sugar was damaged they offered to return the same, and notified said plaintiff to take same away, and that the plaintiff neglected so to do, and that the same was destroyed by fire while being so held by defendants, subject to the order of said plaintiff, then they must find for the defendants." In this, we think, the court erred. It has been frequently held by this court, and the rule seems to be general, that custom and usages of trade are supposed to enter into aud form a part of all contracts, where the usage or custom prevails^ SECT. I.] HOLMES ET AL. V. GREGG ET AL. 657 in reference to the matter to which the contract relates. And if such be the presumption, then it was manifest error to refuse this instruction. For the wrongful refusal to give these instructions, the judgment of the court below is reversed and the cause remanded. Judgment reversed. HOLMES ET AL. V. GEEGG et al. New Hampshire Supreme Court, December, 1889. {Reported in 66 New Eampshire, 621.] Assumpsit, for lumber sold and delivered. Pleas, the general issue and a tender. Trial by the court, and a general finding that the sum tendered was sufficient. The plaintiffs are lumber dealers in Chicago, and the defendants are manufacturers of doors, sash, blinds, etc., in Nashua. One of the plaintiffs, being in Nashua soliciting orders, re- ceived from the defendants an order for five lots of lumber of different dimensions and prices, all amounting to about $1,000. The lumber sent by the plaintiffs came to the defendants' yard in box-cars, in which it could not be examined. When unloaded and examined, three of the five lots were accepted and used by the defendants, and the others, not conforming to the order in dimensions, quality, quan- tity, and price, were rejected, and piled in their yard, Avhere they remained subject to the plaintiffs' order. The defendants seasonably informed the plaintiffs of their action, and tendered the price of the accepted lots. C. W. Hoitt and Sulloway & Topliff, for the plaintiffs. G. B. French, for the defendants. Doe, C. J. The defendants rightfully inspected and measured the lumber before determining to accept or reject it. Benj. Sales, ss. 918, 1042, 1040-10ol, 1342, 134.3, 1348-1350. Without an express stipu- lation that the contract was or was not entire, the parties might have understood that it was severaVjle in such a sense that the defendants could accept the lots that conformed to the contract, and reject the rest. In the general finding for the defendants there is no error of law. Judgvieut fur the defendants. Allen, J., did not sit: the others concurred.^ 1 See also Chapman v. Morton, 11 M. & W. 533; Demens v. Le Moyne, 26 Fla. .323; Knoblauch v. Kronschnabel, 18 Minn. .300; Picrson v. Crooks, 115 N. Y. 530; Hanlt v. Western Electric Co., 84 N. Y. App. Div. 249; Kheinstrom v. Stciner, 69 Ohio St. 4.52; Sun Publishing Co. v. Minnesota Type Co., 22 Ore. 49; Holt v. Pie, 120 Pa. 425; Charles v. Carter, 96 Tenn. 607; Bell v. Anderson, 74 Wis, 638. 658 nilLADELPIIIA WHITING CO. V. DETROIT LEAD WORKS. [CHAP. V. PHILADELPHIA WHITING COMPANY v. DETROIT LEAD WORKS. Michigan Supreme Court, June Term, 1885. [Reported in 58 Michigan, 29.] Sherwood, J.^ The plaintiff agreed to sell and the defendant to buy 300 barrels of the best commercial whiting. 300 barrels were shipped by the plaintiff from Philadelphia and received by the de- fendant in Detroit on September 9. The defendant commenced using the whiting as soon as it arrived, working up two barrels the first day, and from three to four barrels per day until it had used up forty- two barrels and sold them to its customers, who made complaints to the defendant very soon after they received the putty manufactured from the whiting. The defendant made complaint to the plaintiff by letter dated September 21 ; and on September 30 again wrote : " If we do not hear from you by October 10 we will store the remaining whiting at your expense and risk." On November 24 the defendant wrote that it had stored 258 barrels of the whiting in a storage ware- house where storage and insurance were running against it. We fail to discover any error in the rulings or charge of the court on the subject of damages. It was the defendant's duty to receive and take charge of the goods when they arrived in Detroit, and he had a right to expect that they would be of the quality ordered ; and if the plaintiff failed to furnish the article purchased by the defend- ant, and promised by plaintiff to be the best commercial whiting, but did furnish an inferior quality, and ship and deliver the same to the defendant at Detroit, as and for the goods promised, without notify- ing the defendant of the inferior quality of the goods, the plaintiff would be liable, unless the defendant chose to keep the goods, for all necessary charges and expenses in testing the article until defendant found out the difference in quality, and in addition thereto all other necessary, legitimate and approximate damages it sustained, arising directly from the failure of the plaintiff to redeem its promise as to the character of the article delivered. This would include all those expenses incurred in the means taken and things done which would be expected of any careful, prudent business man engaged in the trade under like circumstances. Insurance, freight, cartage and storage paid upon the goods were proper items of damage, and it was not improper to introduce evidence containing the footings of these items as claimed by the defendant. The fifteenth, sixteenth, seventeenth, 1 The statement of facts in this opinion has been abbreviated and portions of the opinion have been omitted. SECT. I.] PHILADELPHIA WHITING CO. V. DETROIT LEAD WORKS. C59 twentieth and twenty-first assignments of error, all relating to these subjects, cannot, therefore, be sustained. I think the following from the charge of Judge Chipman states the law correctly : " If you find for the defendants, I think they are entitled to what, under the undisputed testimony in the case, the cartage, freight and storage amount to, together with the difference in price — in the market price — between what they purchased this whiting for, and what other whiting cost them at that time." It is claimed the court should have allowed the plaintiff to recover for the value of the forty-two barrels used or sold by defendant in testing the article before he found out its inferiority. Had this been done, simple justice would have required the allowance to the de- fendant of the damages it sustained in the use it made of the plain- tiff's goods in testing the quality, and this, according to the undis- puted testimony, was at least $1000, so that it clearly appears the plaintiff has not been injured by the action of the court upon this point complained of. Certainly the defendant derived no benefit from the amount used. The article appears to have been, however, one which must be used before its quality can be ascertained. It was not apparent upon ex- amination, and in such case it is the right of the defendant to make use of so much thereof as, under all the circumstances, may become actually necessary for that purpose, without liability for the value of the same if it fails in the test to fulfil the plaintiff's contract. The charge of the court submitted this part of the case fairly to the jury in the following paragraph thereof : " The question arises whether the goods were of such a character that, upon being received by the defendants, they could determine whether the goods were in accordance with the contract or not. If they were such goods that any one could determine by mere inspec- tion of them, the mere sight of them would determine their character, then there would be no difficulty in this case whatever — there would be nothing to leave to you ; and if you find they were such goods, then your verdict must be for the plaintiff. l>ut the contention of the defendant is that they are not such goods ; that they are of such a character that it is impossible, without actually trying them in the process of manufacture, to determine what kind of goods they are ; that the question whether they are the kind of goods ordered at all, or whether they are the quality of goods that were ordered, can only be determined ])y the process of actual use. Now, you have heard the testimony upon that point, and you are to determine where the truth lies ; whether that is so, or whether it is not so. If that is so, then the mere acceptance of the goods would not constitute an acceptance, and the defendants would have the right under the law to go a step further and to try to make experiment as to the quality of the goods, and as to whether they were such as fulfilled the con- tract which had been made between the parties. Now, in regard to GGO PHILADELPHIA WHITING CO. V. DETROIT LEAD WORKS. [CHAP. V. this matter of trial, it must be reasonable ; it must be such a trial as under all the circumstances of the case the subject-matter — that is, the goods — rendered necessary. The party cannot go on under the guise of making an experiment for an unreasonable length of time, or use an unreasonable quantity of the goods. The party must act with promptitude, and that promptitude must be reasonable in view of all the circuiustances of the case. What would be reasonable prompti- tude in one case would not be promptitude at all in another case ; so that in this case, as in other like cases, your duty will be to deter- mine as to the degree of diligence the defendants used in ascertaining whether this article was the article they had contracted for, and as to whether the quantity which they used was such as did not go beyond a reasonable amount for the purposes of experiment. There were three hundred barrels in all. A certain number of barrels were used ; was there too much used ? Was the experiment continued so -long as to amount to an acceptance of the goods ? — as to amount to an actual entering into a use of the goods ? All these are questions for you to determine, and you must determine them by the testimony in the case. Now, in regard to the degree of promptitude. If you find that the goods were not up to the mark ; if you find that the experiments and the use were such as you would assume to be reasonable — then the next question is, what did the defendants do in regard to the goods ? It is claimed by them in testimony, and I think virtually admitted, that they stored the goods and notified the plaintiff that the goods were stored and subject to their order, and that was done shortly after or about the time, as I understand it, that these experi- ments, as they claim they were, ceased. Now, as I say, they must act promptly. They covild not retain the goods for any great length of time after they knew that the goods were bad, and yet, by writing a letter of that kind, absolve themselves from paying for the goods. Neither could they continue their experiments too long, or use too great a quantity in their experiment." Benjamin on Sales, § 655 et seq. On a review of the whole case — and it is all before us — we find no error in the rulings or charge of the court, and The jtidgment should he affirmed} CooLEY, C. J., and Campbell, J., concurred. 1 Compare Lucy v. Mouflet, 5 H. & N. 229; Cream City Glass Co. v. Friedlander, 84 Wis. 53 ; Zipp Mfg. Co. v. Pastorino, 120 Wis. 176. SECT. I.] LAWDER & SONS CO. V. MACKIE GROCERY CO. 661 SAMUEL M. LAWDER & SONS COMPANY v. ALBERT MACKIE GROCERY COMPANY. Maryland Court of Appeals, April 1, 1903. [Reported in 97 Maryland, 1.] Boyd, J.^ The appellee sued the appellant for breach of a contract by which the appellee agreed to buy and the appellant to sell 700 cases of tomatoes at a fixed price, "Terms cash, less one and one half per cent. Buyer to give shipping instructions when requested by the seller. To be delivered as packed during the season of 1901. F. o. b. Baltimore." The appellant seasonably notified the appellee that the tomatoes were ready to go forward and requested the payment of the price, to which the- appellee replied, "Will not pay for the tomatoes until the goods reach us." The appellant refused to deliver on these terms and this action was brought. It is contended that conceding that the appellant had the right to require the payment in cash, it could only be demanded after the tomatoes reached New Orleans. We are, however, again confronted with the terms of the contract, in passing on that question. It pro- vides "Buyer to give shipping instructions when requested by seller. To be delivered as packed during the season of 1901. F. o. b. Balti- more." There is nothing in that language which would justify us in saying that the casli was not to be paid until the tomatoes reached New Orleans. Indeed there is no express provision in the contract for shipping them to that city. It may be said that it states the resi- dence of the buyer to be at New Orleans, and hence the presumption is tliat they were to be shii)ped there. In the absence of some instruc- tion to the contrary from the buyer it maybe that the contract should be construed to mean that they were to be shi])ped to that city, but as the seller was only required to deliver them " f. o. b. Baltimore " and the contract provided for the "Buyer to give shipping instructions when requested by seller" there would be no reason w^hy the seller should not ship them to some other point, if so instructed by the buyer, unless such shipment would impose a greater burden on the seller than shipping them to New Orleans would have done. If, for example, the buyer had sold those tomatoes in bulk to some one in Richmond, there could be no valid reason for the seller sending them to New Orleans and thus require the buyer to pay the freiglit to that place, and then reship them to Richmond. It would seem therefore 1 The statement of the case is abbreviated, and a portion of the opinion in which the con- tract is construed, is omitted. GC2 LAWDEK & SONS CO. V. MACKIE GROCERY CO, [CHAP. V. to be possible that the tomatoes might never have gone to New Orleans, under the tenus of the contract, and hence it is difficult to see how it can be said that the cash was not to be paid until they reached that city. But if it be conceded that the contract contemplated that the ship- ment should be to New Orleans and not elsewhere, it cannot be denied that if the appellant had placed the tomatoes purchased, in proper condition, on board the cars at Baltimore, with correct shipping in- structions, its responsibility would have been at an end. The carrier would then have been the agent of the buyer and the seller would have had no redress against the carrier in case of loss. If the goods had been destroyed or injured, the buyer and not the seller could have held the carrier responsible, so far as there was any responsibility, and if there was none the buyer would have been compelled to sus- tain the loss. The seller would not even have had a lien on the goods for the purchase-money, and no right but that of stoppage m transitu, if circumstances arose that justified the exercise of that right. When then the contract provides for payment of cash and only requires the seller to deliver the goods free on board at Baltimore, why should the seller be required to wait until they arrive at New Orleans before it is entitled to its money ? While the terms " f. o. b. Baltimore " re- quired the seller to place, at its own expense, the goods on board in Baltimore, the buyer was required to pay the freight to the carrier and the goods were then at his risk. This contract not only uses the term "f. o. b. Baltimore" but it says "To be delivered as packed during the season of 1901. F. o. b. Baltimore." In the record there is a period after " 1901," but the expression " To be delivered," etc., unquestionably refers to and is connected with " f . o. b. Baltimore," and hence shows that the delivery was intended to be there. Al- though the sale was for cash, a delivery made unconditionally and without fraud or mistake would have vested the title to the goods in the appellee, Foley v. Mason, siqwa, and hence such a delivery in Baltimore would have had that effect, and a delivery elsewhere would not have been in accordance with the contract. It seems clear to us then that by the terms of the contract the payment was to be made in Baltimore upon delivery of the tomatoes on board the car and the appellee having refused, as alleged in the pleas, to make such pay- ment, it cannot sustain this action, without in some way meeting the allegations of the pleas. Any other construction would be placing the appellant in a position not contemplated by the contract. It was conceded by the appellee that a cash sale means a sale for cash to be paid on delivery of the goods, and that as a general rule the place of delivery is the place where the goods are being manufactured ; but it is said that this rule is not invariable and may be affected by the situation of the parties, the nature and subject-matter of the contract, and other collateral circumstances which show a different intention, to which courts give effect, and that there is a distinction noted in SECT. I.] LAWDER & SONS CO. V. MACKIE GROCERY CO. 663 the authorities between the rules governing deliveries in sales of spe- cific and ascertained chattels and those of goods not in existence, but to be manufactured by the seller to correspond with the descri])tion in the contract of sale. It is true that such a distinction is made in the absence of stipulations in the contract which govern the parties, but when the contract itself prescribes the terms and these terms are free from doubt, they must be the guide for Courts in passing on the rights of the parties. Great stress was placed on the right of the appellee to inspect the goods before acceptance. If it be conceded that it had such right, as it may be, the further question arises as to where, under this con- tract, it could be exercised. The mere fact that the buyer has the right to inspect goods before acceptance does not necessarily mean that the inspection is to be made at the residence or place of business of the buyer. He might inspect at the seller's place of business, but if the contract provides for delivery at a particular place, he must accept or reject at that place, unless otherwise provided for in the contract. In short a contract to deliver at one place cannot be said to mean delivery at another place, because the buyer lives there and has the right to inspect the goods, and there is no such uncertainty as to the place of delivery in this contract as would justify the Court in holding that it was at New Orleans, because the appellee had its place of business there. An inspection of canned goods at any place away from the canning establishment must be attended with some difficulties. Every can that is opened is doubtless injured for the ordinary purposes of trade, for unless it is speedily sold the fruit or vegetables must soon become worthless. There is nothing in the record to show what the custom is as to inspection and the parties made no special provision in the contract for it, but it is manifest that there could not be an inspection of every can in seven hundred cases at the place to which they were to be shipped. But whatever inspec- tion was to be made could have been done as well at the place from which the goods were shipped as at the point of destination, and it is mainly a question of convenience to the respective parties as to where it shall be made. If they determine that by their contract, it must control, and if it is silent as to inspection but is as clear as this is as to delivery, any inspection that is desired before payment must be made before or at the time of delivery, when the terms are cash. It was said on behalf of the appellee that the usual method of col- lecting the purchase-money for such goods is for the vendor to draw on the vendee and not deliver the bill of lading until the draft is paid, but a sufficient answer to that is tliat it was not the method adopted in this contract. The standing of these parties is not known to us, and we do not mean to reflect upon either of them, but if a vendor wants to relieve himself of all risk of loss, or unfair dealing by a vendee residing at a distance, he has the undoubted right to require payment at the place where the goods are to be shipped from^ rind 6G4 rOLENGHI BROTHERS V. DRIED MILK CO., LTD. [CIIAP. V. not subject himself to the risk of loss or inconvenience by the vendee declining to accept the goods at the place of destination, and when the contract provides for that, as we think this does, the contracting parties are bound by it. Judgment reversed and a new trial awarded, the costs to be paid by the appellee}^ POLENGHI BKOTHERS v. DRIED MILK COMPANY, LIMITED. In the King's Bench Division, December 7, 1904. [Reported in 49 Solicitors' Journal, 120.] Action tried in Commercial Court. The plaintiffs agreed to sell by sample certain milk powders to the defendants. The agreement was dated the 20th of January, 1904, and contained, inter alia, the following clause : '' Prices to be paid . . . 4|fZ. per lb. c. i. f .^ London . . . and 6d. per lb. c. i. f. London. . . . Payment to be made in London against the shipping or railway documents, or with the ven- dors' consent by ninety days' bills to be guaranteed by two of the directors of the Dried Milk Co. (Limited), and approved by the vendors . . ." The goods arrived at the railway company's ware- house. The defendants refused payment until the bulk had been inspected. Kennedy, J. The goods were arrived goods at the railway com- pany's warehouse. They were goods in respect of which the sellers were in a position to tender to the buyer the shipping documents, and the defendants were not entitled to inspect under section 15 of the Sale of Goods Act, 1893, before payment. Judgment for plaintiffs.* 1 Compare Pope v. Allis, 115 U. S. 363 ; Weil v. Stone, 69 N. E. Rep. 698 (Ind. App.). 2 As to the effect of these letters see L. R. 5 H. L. 395, 400. 3 "Besides the incidents attaching to a contract of sale by sample, and which have been enumerated by my Lord, I think there is also the following, that such a contract always contains an implied term that the goods may under certain circumstances be returned ; and that such term necessarily contains certain varying or alternative applications, and, amongst others, the following, that, if the time of inspection, as agreed upon, be dif- ferent from the place of delivery, the purchaser may, upon inspection at such time and place, if the goods be not equal to sample, return them then and there on the hands of the seller. Otherwise the right of inspection given to the purchaser would fail in its pri- mary object ;" per Brett, J., in Heilbutt v. Hickson, L. R. 7 C. P. 438, 456. See also Herrick v. Gallagher, 60 Barb. 566. SECT. I.] WILTSE V. BARNES. 665 WILTSE V. BAENES. Iowa Supreme Court, June 12, 1877. [Reported in 46 Iowa, 210.] This is an action of replevin which was commenced before a justice of the peace. The justice rendered judgment for plaintiff in the sum of forty-five dollars and costs. Defendant appealed to the Circuit Court, where the cause was submitted upon the following agreed statement of facts : " That about the first day of September, 1875, defendant, J. C. Barnes, as local agent of the American Express Company, received at the office of said company at Strawberry Point, Iowa, a certain box marked 'dry goods,' billed and marked *C. 0. D. thirteen dollars,' and consigned to plaintiff; that defendant immediately informed plaintiff of the receipt of the box ; that plaintiff tendered the amount of express charges, one dollar and fifty cents, and demanded an inspec- tion of the goods, and then claimed that the box contained a human skeleton, the bones of which, before matriculation, were the property of plaintiff ; that the same had been left with one W. Mahone, the consignor, in Chicago, 111., under an agreement between them that said Mahone was to matriculate the same in a good, workmanlike manner, for the sum of fifteen dollars ; that plaintiff had paid him five dollars on said agreement, and with the further understanding that the skeleton, when complete, should be shipped to plaintiff by express ; that previous to shipment some correspondence had taken place between Mahone and plaintiff' in relation to the loss of some of the bones, and an offer on the part of Mahone to supply them for the sum of three dollars ; that plaintiff" directed said Mahone to supply the lost bones, and when the job was comjjleted to ship the same to him at Strawberry Point, Iowa, by express, C. 0. D. Plaintiff then claimed the riglit to inspect the skeleton contained in the box to ascertain if the bones had been supplied and the matriculation well executed. Defendant then informed plaintiff that it was against the rules and regulations of the express company to allow an inspection of express goods without the consent of the consignor; that defendant imme- diately telegraphed to consignor for permission to allow plaintiff to inspect the goods ; that consignor refused to allow an inspection to be made, and directed that unless plaintiff received the same and paid the amount claimed at once that defendant should .';hip the same back to consignor ; that within a few days thereafter defendant re- ported to plaintiff the orders and directions of said consignor, and QQ6 AVILTSE V. BARNES. [CHAP. V. requested him to receive the goods and pay the amount demanded ; that plaintiff then offered to place the amount of the claim, viz. : C. 0. D. thirteen dollars in money in the hands of defendant, on condition that he could then inspect the goods, and if found to be perfect in its x'arts and the workmanship good, then the plaintiff to keep the goods and defendant to retain the money, otherwise plain- tiff to return the goods and take back the money, and offered to leave the question to defendant to decide whether the parts were all there and the job reasonably well done, at the same time tendering the express charges, one dollar and fifty cents, and leaving the same on defendant's table ; that defendant refused to receive the money or allow plaintiff to inspect the goods, and notified plaintiff that he should re-ship the goods to Chicago, according to instructions ; plain- tiff then notified defendant that he should proceed to replevin the same ; that while plaintiff was endeavoring to obtain his writ of replevin defendant placed the box upon an eastern-bound freight train with orders that it be left at some station east and taken up by the next express train ; that the officer with the writ of replevin reached the express office before the arrival of the first eastern-bound express train, and that the box was in defendant's hands at the time the writ issued ; that the value of the goods was forty-five dollars ; that plain- tiff's damages, if any, were ten dollars." The court rendered judg- ment for defendant. Plaintiff appeals. A. S. Blair, for appellant. J. H. Peters, for appellee. Day, Ch. J. In addition to the foregoing stipulation, it is agreed that the following rule of the express company was admitted in evi- dence : " Ko agent, clerk, messenger, or driver is authorized to open for inspection or examination any parcel, box, or bale, accompanied by a C. 0. D. collection, until said collection and express charges are paid." The following extract of a circular calling attention of agents to the above rule, dated July 1, 1862, was also admitted : " Our orders from shippers are to transport, collect, deliver, and return the pro- ceeds of their invoices, and, if there are errors, they must be recon- ciled with and by the shipper. We neither make nor sell the goods, and cannot be held accountable for any discrepancies. This rule may give offence to some unreasonable persons, but a plain explanation should satisfy them that this company should not be censured. If consignees refuse the goods because they are not allowed to make the examination before payment, then they must write the shipper for a change of his order ; and under no circumstances are you authorized to allow the examination without the written permission of the ship- per or the agent from where the goods came, and if the goods are positively refused, advise that agent at once of the facts, and wait for further orders." If this rule had been brought home to the knowledge of the ship- SECT. I.] WILTSE V. BARNES. 667 per, then it would be presumed that he shipped pursuant to its pro- visions, and with the expectation that it would be observed. There is, however, no proof that the shipper knew of the existence of this rule ; still, we think it was competent for him to stipulate as to the terms of shipment, and the conditions under which delivery should be made to the consignee. It does not appear that any special contract was made at the time of shipment. It is, however, shown that before this action was com- menced the consignor refused to allow an inspection of the pro- perty to be made, and directed that unless plaintiff received the same and paid the amount at once defendant should ship it back to con- signor. After receiving this direction the defendant had no right to deliver the property in violation of the orders of the consignor, nor had the consignee, as against the defendant, a right to the possession of it. The defendant, by obeying the orders of the consignor, did not render himself liable for the value of the property. The only case cited by appellant which has much direct bearing upon this question is that of Lyons v. Hill, 46 N. H. 49. In that case a package of goods was forwarded by a carrier to be paid for on delivery. It was held that the carrier did not render himself liable for the price by furnishing the consignee reasonable opportunity for examination and taking the property back when it was found to be unsatisfactory. In that case there was no proof of a special direc- tion by the consignor not to permit an inspection. We think, under the facts of this case, the defendant is not liable. Affirmed} 1 Compare Louisville Lithographic Co. v. Schedler, 23 Ky. L. Rep. 46.5; Hardy v. Amer- ican Express Co., 182 Mass., 328; Lyons v. Hill, 46 N. H. 49; Herrick v. Gallagher, 60 Barb. 566. 668 CHANDELOE V. LOPUS. [CHAP. V. SECTION 11. Warranty. A. Express Warranty. CHANDELOR v. LOPUS. In the Exchequer Chamber, Easter Term, 1625. [Reported in Croke, James, 4.] Action upon the case. Whereas the defendant being a goldsmith, and having skill in jewels and precious stones, had a stone which he affirmed to Lopus to be a bezoar-stone, and sold it to him for one hundred pounds ; ubi revera it was not a bezoar-stone : the defendant pleaded not guilt}', and verdict was given and judgment entered for the plaintiff in the King's Bench. But error was thereof brought in the Exchequer Chamber ; because the declaration contains not matter sufficient to charge the defendant, viz., that he warranted it to be a bezoar-stone, or that he knew that it was not a bezoar-stone ; for it ma}' be, he himself was ignorant whether it wore a bezoar-stone or not. And all the justices and barons (except Anderson) held, that for this cause it was error : for the bare affirmation that it was a bezoar- stone, without warranting it to be so, is no cause of action ; and although he knew it to be no bezoar-stone, it is not material, for eveiy one in selling his wares will affirm that his wares are good, or the horse which he sells is sound ; yet if he does not warrant them to be so, it is no cause of action, and the warranty ought to be made at the same time of tlie sale ; as F. N. B. 94 c. and 98 b., 5 Hen. 7, pi. 41 ; 9 Hen. 6, pi. 53 ; 12 Hen. 4, pi. 1 ; 42 Aff. 8 ; 7 Hen. 4, pi. 15. AVherefore, for- asmuch as no warrant}' is alleged, the}' held the declaration to be ill. Anderson to the contrary ; for the deceit in selling it for a bezoar, whereas it was not so, is cause of action. — But, notwithstanding, it was adjudged to be no cause, and the judgment was reversed.^ 1 Seixas v. Woods, 2 Caines, 48 ; Swett v. Colgate, 20 Johns. 196, ace. See 2 Harv. L. Rev. 9; 1 Col. L. Rev. 71. SECT. II.l JENDWINE V. SLADE. 669 BUTTERFIELD v. BURROUGHS. In the Queen's Bench, Trinity Term, 1706. [Reported in 1 Salkeld, 211.] The plaintiff declared that the defendant sold him a horse such a day and at such a place, & adtiinc & ibidem lo arrant Izauit equum prcedict., to be sound, wind and limb, whereupon he paid his money, and avers the horse had but one eye, etc. The defendant pleaded non tcarrantizavit ; upon which there was a verdict for the plaintiff; and now in arrest of judgment it was objected, 1st, That the want of an eye is a visible thing, whereas the warranty extends onh' to secret infirmities.^ But to this it was answered and resolved by the court, that this might be so, and must be intended to be so, since the jury have found the defendant did warrant. 2d Obj., As the warranty is here set forth, it might be at a time after the sale ; whereas it ought to be part of the very contract, and therefore it is always alleged warranii- zando vendidit. Sed non cdlocatur ; for the payment was afterwards, and it was that completed the bargain, which was imperfect without it. JENDWINE V. SLADE. At Nisi Prius, Trinity Term, 1797. {Reported in 2 Espinasse, 572.] This was an action brought to recover damages on the sale of two pictures, one of which was said to be a Sea-piece by Claude Lorraine, the other a Fair by Teniers, which the defendant had sold to the plain- tiff as originals, when in fact they were copies. The defence relied on was, that they were sold under a catalogue, not amounting to an absolute warranty, but upon which the buyer was to exercise his own judgment ; and further, that a bill had been filed by the defendant two years ago, to compel the plaintiff to complete the sale ; to which he had put in no answer, but paid the money, and that he therefore could not now seek to rescind tlie contract after such acquiescence. The plaintiff's counsel answered this objection by insisting, that the name of the artist put oi)posite any picture in a catalogue was a war- 1 "Brian. If a man sells me a liorso, and warrants tliat he has two eyes, if ho has not I sliall not have an action of deceit for I could know this at the beginning." r. B. 11 Edw. IV. 6 10. "And the distinction is taken where I sell a horse that has no eye, there no action lies. Otherwise where he has a counterfeit false and briglit eye." Southerne v. Howe, 2 Rolle, 5. See also Y. B. 13 Ily. IV. I. 4. 670 POWER V. BARHAM. [CHAP. V. rai)lv ; and if the article sold did not correspond with it, it avoided the sale ; and as to the transaction in respect to paying tlie money, that the plaintifT was deceived, but had brought his action as soon as he dis- covered the fraud. Several of the most eminent artists and picture dealers were called, who differed in their opinions respecting the originality of the pictures. When the evidence was closed, Lord Kenyon said : It was impossible to make this the case of a warrant}- ; the pictures were the work 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 atlixed to it. The action in its present shape must go on the ground of some fraud in the sale. But if the seller onl}- represents what he himself believes, he can be guilty of no fraud. The catalogue of the pictures in question leaves the determination to the judg- ment of the buyer, who is to exercise that judgment in the purchase. With respect to the bringing of the action his Lordship added, that if any fraud has been committed in a sale, if the party comes recentl}' after discovery of the deception, he is not barred by circumstances having taken place, such as were stated. The cause was referred to arbitration. Evskine and Lawes, for the plaintiff. Law and Fielding^ for the defendant. POWER V. BARHAM. In the King's Bench, January i4, 1836. [Reported in 4 Adolphus Sf Ellis, 473.] Assumpsit. The declaration stated that, in consideration that the plaintiff, at the defendant's request, would buy of him four pictures at a certain price, to wit, &c,., the defendant " promised the plaintiff that the said pictures were painted by a certain artist or master in painting, called or named CanalettI, otherwise Canaletto." Breach, that the said pic- tures '• were not, nor was either of them, painted by the said artist or master called or named Canaletti, otherwise Canaletto," whereby the said pictures were and are of little or no use, &c., and the plaintiff lost the benefits, &c. Plea, non assumpsit. On the trial before Cole- ridge, J., at the sittings in Middlesex after last term, it appeared that the defendant sold the pictures to the plaintiff for £1G0, and, at the time of the sale, gave the following bill of parcels and receipt : — SECT. II.] POWER V. BAEHAM. 671 Mr. N. Power. Bought of J. Barham. May Uth, 1832. Four pictures, Views in Venice, Canaletto, £160 00 Settled b\- two pictures £ 50 00 And a bill at five months 110 00 £160 00 J. Barham. A carver and gilder, who had been employed by the plaintiff to pro- cure original pictures for him, gave evidence of previous representa- tions by the defendant to him and to the plaintiff, that the pictures were genuine ; some doubt, however, was raised as to the expressions actually used. The witness stated tliat the pictures were in the manner of Cana- letti, and, at the time of the sale, appeared to him worth the mone}'. A witness experienced in paintings stated that he considered the pictures not to be Canaletti's, and valued them at about £8 each ; and some other evidence was given on this point. For the defendant it was con- tended that the bill of parcels was not a warranty, but only an expres- sion of opinion ; and Jendwine v. Slade, 2 Esp. N. P. C. 572, was cited. The learned judge, in summing up, told the jury that the pictures were admitted not to be Canaletti's, and that theonlj- question on tlie plead- ings was whether the promise was made ; and lie submitted to tiieir consideration, upon the whole of the evidence, whether tlie defendant had made a representation, as part of his contract, that the pictures were genuine, not using the name of Canaletti as matter of description merely, or as an expression of opinion upon something as to which both parties were to exercise a judgment, but taking upon himself to repre- sent that the pictures were Canaletti's. His Lordship noticed the argu-> mcnt on behalf of the defendant, as to the bill of parcels ; and said that the words of Lord Kenyon, in the case referred to, must be considered, not as a general rule of law, but as a direction to the jury on the circum- stances of that case. The jur}' found a verdict for the plaintiff, saying, " We tliink the bill of parcels is a warranty." Lord Denman, C. J. I think that the case was correctly left to the jur}'. We must take the learned judge to have stated to them that the language of Lord Kenyon in Jendwine v. Slade, supra, was merely the intimation of his opinion uijon sucli a contract as was then before him. It may be true that, in tlie case of very old pictures, a person can only express an opinion as to tlieir genuineness ; and that is laid down l)y Lord lv"enyon in tlie case referred to. But the case here is that pictures are sold with a bill of parcels containing the words " Four Pictures, Views in Venice, Canaletto." Now woids like these must derive their explanation from the ordinary way in which 94icli matters are transacted. It was, there- fore, for the jury to say, under all the circumstances, wliat was the effect of the words, and whether they implied a warranty of genuine- ness, or conveyed only a description, or an expression of opinion. I 39 G72 MARGETSON V. WRIGHT. [CIIAP. V, think that their finding was right : Canaletti is not a very old painter.' But, at all events, it was proper that the bill of parcels should go to the jury with the rest of the evidence. Hale refused.^ MARGETSON v. WRIGHT. In the Common Pleas, May 12, 1832. [Reported in 8 Bingham, 454.] The defendant sold the plaintiff a race-horse called "Sampson,'* which he warranted sound, wind and limb, at the time of sale. Some time after the sale, the horse became lame ; whereupon the plaintiflf sued the defendant upon his warranty, and obtained a verdict. It appearing, however, that the subsequent lameness was occasioned by a splint, the existence of which was known to the plaintiff at the time of sale, the defendant obtained a rule absolute for a new trial. See 7 Bingh. 603. Upon the second trial, the plaintiff gave evidence as to the nature and consequences of various kinds of splints ; that a splint ma}' or may not be the efficient cause of lameness, according to the position wiiich it occupies, and its size or extent; and that " Sampson's" splint was in a ver}' bad situation, as it pressed upon one of the sinews, and would naturall}- produce, when the horse was worked, inflammation of the sinew, and consequent lameness. The jur}' again found a verdict for the plaintiff, when the learned judge who presided (Vaughan, B.), requesting them to tell him distinctl}', whetiier, in their judgment, the horse was sound ; or, if unsound, whether the unsoundness arose from the splint of which evidence had been given; the jury said, "that although the horse exhibited no symptoms of lameness when the contract was made, he had upon him at the time of the contract, the seeds of unsoundness arising from the splint." AVhereupon Wilde, Serjt., obtained a rule nisi for a new trial, upon the ground, that the learned Baron ought to have directed a verdict for the defendant. /Sjmnkie, Serjt., showed cause. Cur. adv. vidt, TiNDAL, C. J. This was an action upon a warrant}', in which the defendant warranted the horse to be sound, wind and limb, "at this time," — that is, at the time of the warranty made. The jury at the ' Canaletti died in 1768, Claude Lorraine and Teniers (tlie younger), the painters mentioned in Jendwine v. Slade, died, the first in 1682, the latter in 1694. - LiTTLEDALE and Williams, JJ., delivered brief concurring opinions. Cole- ridge, J., also concurred. SECT. II.] MAEGETSON V. WRIGHT. 673 trial found a verdict for the plaintiff. The learned judge requested the jury to tell him distinctly whether, in their judgment, the horse was sound; or, if they believed him to be unsound, whether that unsound- ness arose from the splint of which evidence had been given. In answer to which inquiry, the jury said, "That although the horse exhibited no symptoms of lameness at the time when the contract was made, he had then upon him the seeds of unsoundness arising from the splint." The question upon this application for a new trial is, Whether this finding of the jury sanctions the verdict for the plaintiff or not ; that is, whether the court can see with sufficient clearness that the jury thought that the horse was unsound at the time of the contract, and consequently that the warranty was broken. It appears that the evi- dence before the jur}' was, in substance, that a splint might or might not be the efficient cause of lameness, according to the position which it occupied, and its size and extent ; that this splint was in a very bad situation, as it pressed upon one of the sinews, and would naturally produce, when the horse was worked, inflammation of the sinew, and consequent lameness. The jury, therefore, drawing their attention to the particular splint to which the evidence related, appear to us to have intended that this individual splint, though it did not at the moment produce lameness, was, at the time of the contract, of that sort and in that situation as to contain, in their language, the seeds of unsound- ness, — that is, the efficient cause of the subsequent lameness. If the lameness complained of had proceeded from a new or different splint, or from the old splint taking a new direction in its growth, so as to affect a sinew, not having pressed on one before, such a lameness would not have been within the warranty, for it would not have con- stituted a present unsoundness at the time of the warranty made. But the jury find that tlie very splint in question is the efficient cause of lameness. On the former motion, our attention was not called to any evidence, if any such was given, as to the diflferent nature and conse- quences of splints which the learned judge reports to have been given upon the present occasion ; but it now appears that some splints cause lameness, and others do not, and that the consequences of a splint can- not bo apparent at the time, like the loss of an eye or any visible blemish or defect, to a common observer. We therefore think that, by the terms of this written warranty, the parties meant this was not a splint at that time which would be the cause of future lameness, and that the jury have found that it was. We tlierofore think that the warranty was broken, and that the postea must be delivered to the plaintiff. Mule discharged. 674 Mccormick v. kelly. [chap. v. CYRUS H. Mccormick and another v. j. j. kelly. Minnesota Supreme Court, July 15, 1881. [Reported in 28 Minnesota, 135.] Appeal from order of District Court, county of Brown. John Lind, for appellant. B. F. JJ'ebber, for respondents. Dickinson, J. This action was brought to recover the amount of a promissory note made by the defendant to the plaintiffs for part of the purchase-pi'ice of a harvester purchased by the former from the latter. The making of the note is not in issue ; the only defence asserted being in tlie nature of a counter-claim for damages from an alleged breach of warranty, on the part of plaintiffs, in respect to the harvester. By his answer the defendant avers that he first took the machine on trial, and upon the trial it proved to be unsatisfactory and would not do good work, and that he notified the plaintiffs to take the machine away ; whereupon the plaintiff's promised and agreed with the defend- ant to put the machine in good order ; to furnish certain parts of the machine new, and warranted the machine to be well made, of good material, durable, and not liable to break or get out of order ; that it would cut and elevate grain as well as any other machine, and was in all respects a first-class machine, and capable of doing first-class and satisfactory work as a harvesting machine ; relying upon which prom- ises, agreements, and warranties, defendant purchased the machine, giving the note in question. The 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. By a reply the plaintiffs put in issue the making of a warranty, as well as the agreement to furnish new parts for the machine. The evi- dence on the part of the defendant tended to prove that he got. the machine for trial before the commencement of the harvest of 1878 ; that it did not work well, although he used it to cut about 70 acres of grain ; that he often made complaint to the agents of the plaintiffs, who urged him 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 good 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 market, and it sliould be fixed 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, relying, as he testifies, upon the representations made. The evidence tends to show that at this time the defendant knew the defects in the machine of which he now complains. SECT. II.] Mccormick v. kelly. 675 At the request of the defendant the court instructed the jury as follows: "If the jury fiud, from the evidence, that the plaintiffs expressly warranted the machine for which the note in suit was given, 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 affected by 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: "1 charge you that where a general warranty is given on the sale of a machine, defects that were apparent at the time of making of the bargain, and were fully known to the purchaser, can- not be relied upon as a defence to a note given for such machine, when the purchaser has such knowledge at the time of giving the same. (2) If you find that the machine was taken on trial, under a contract of purchase, and that, after having fully tried it, the defend- ant gave his note therefor, he cannot offset against any such note damages arising from any alleged breach of warranty against defects known to the defendant at the time of settlement and giving of the note." The court further instructed the jury in the following language: " A vendor may warrant against a defect that is patent and obvious. . . . You sell me a horse, and you warrant tliat horse to have four iegs, and he has only three. I will take your word for it. [The court then read in the hearing of the jury the following from Addison on .Contracts : ' When a general warranty is given on a sale, defects which were apparent at the time of the making of the bargain, and were known to the purchaser, cannot be relied on as a ground of action. If one soils purple to another, and saith to him, " This is scarlet," the warranty is to no purpose, for that the other may per- ceive this ; and this gives no cause of action to him. To warrant a thing that may be perceived at sight is not good.'] Gentlemen, that is not the law of this State." The court erred in these instructions to the jiu-y. It has always been held that a general warranty sliould not be considered as apply- ing 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 autliority and reason authorize this proposition, viz. : that for representations in the terms or form of a warranty of personal property no action will lie on account of defects actually known and understood by the pur- chaser at the time of the bargain. Maijetson ?'. Wright, 7 I>ing. G03 ; Dyer u. Ilargrave, 10 Ves. Jr. oOO ; Schayler ik Russ, 2 Caines' R. 202; Kenner v. Harding, 85 111. 264; Williams^ v. Ingam, 21 Texas, 300 ; Marshall v. Drawhorn, 27 Ga. 275 ; Shewaiter v. Ford, 34 Miss. 417; Brown v. Bigelow, 10 Allen, 242; Story on Cont. § 830; Benj. on Sales (2d ed.), 502 ; Chitty on Cont. (lltli Am. ed.), 644. G76 Mccormick v. kelly. [chap. v. A warranty, for the breach of the conditions of which an action ex contractu for damages can be maintained, must be a legal contract, and not a mere naked agreement. It must be a representation of something as a fact, upon which the purchaser relies and by which he is induced, to some extent, to make the purchase, or is influenced in respect to the price or consideration. Oneida Manuf'g Society v. Lawrence, 4 Cow. 440 ; Lindsey v. Lindsey, 34 Miss. 432 ; Blythe V. Speake, 23 Texas, 429 ; Adams v. Johnson, 15 111. 34 ; Ender v. Scott, 11 111. 35 ; Hawkins v. Berry, 5 Gil. 36 ; 2 Add. on Cont. 626 (Morgan's ed.). In the nature of things one cannot rely upon the truth of that which he knows to be untrue ; and to a purchaser fully knoioimj the facts in respect to the property, misrepresentation cannot have been an inducement or consideration to the making of the purchase, and hence could have been no part of the contract. It lias 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 " conflned to those eases of doubt and diffi- culty where the purchaser relies on his warranty and not on his own judgment." It has no application to the case of a purchaser who knows the defects in the property and the untruthfulness of the ven- dor's representations. We do not, however, mean to say there may not be a warranty against the future consequences 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 con- sideration, cannot affect the result. In fact, that the instructions to the jury were thus inconsistent, and calculated to mislead or confuse rather than inform and guide the jury, is in itself a sufficient i-eason why the verdict should not stand. Vanslyck v. Mills, 34 Iowa, 375 ; C, B., & Q. R. Co. V. Payne, 49 111. 499. ' For the reasons already indicated, a new trial must be awarded, and it is unnecessary to consider whether the verdict is supported by the evidence presented in this case ; nor is it necessary to consider some other alleged errors involving no doubtful questions of law, and which are not likely to recur upon another trial. Anticipating, how- ever, that upon the retrial, as in the former one, the question may arise as to the authority which an agent empowered to sell machinery of the kind in question may be presumed to possess in respect to the warranting of the property, in the absence of any proof of express authority we will pass upon the question as it is presented by the facts in this case. For the purposes of this case it is sufficient to say that an agent engaged for his principal in the business of selling personal property, is presumed to be authorized to sell with warranty, Iz may be, howevet, that if the property be of a kind not usually sold with warranty, no such presumption will be exercised. Nelson v. Cowing, G Hill, 336 ; Smith v. Tracy, 36 N. Y. 79 ; Schuchardi v. SECT. II.] WOLCOTT, ETC. CO. V. MOUNT. 677 Aliens, 1 Wall. 359; Upton v. Suffolk Co. Mills, 11 Cush. 586; Boothby v. Scales, 27 Wis. 626 ; Ahern v. Goodspeed, 72 N. Y. 108 ; Murray v. Brooks, 41 Iowa, 45. In the case of such an agent engaged in selling harvesters without proof of express authority to warrant, the court will presume such authority. The order refusing a new trial is reversed, and a new trial is awarded.^ WOLCOTT, JOHNSON, & CO. y. LEWIS D. MOUNT. New Jersey Supreme Court, June Term, 1873. [Reported in 7 Vroom, 262.] On certiorari to the Monmouth Pleas, on the trial of an appeal from the judgment of a justice of the peace. The cause was argued in this court on the following statement of the case : On the trial of the appeal. Mount, the appellee and plaintiff before the justice, proved that Wolcott, Johnson, & Co. were merchants, keep- ing a store of general merchandise, in the county of Monmouth, and that, among other articles, they advertised and kept agricultural seeds for sale, and sold seeds. Mount went to their store and asked one of the partners, Bloomfield Wolcott, for early strap-leaf red-top turnip seed, and Wolcott showed him, and sold to him, seed which Wolcott told him was early strap- leaf red-top turnip seed, and sold it to Mount (two pounds) as such, and Mount paid him cents for the same. Mount sowed the same on acres of his ground, which he had prepared with care and great expense for the purpose. Mount had been in the habit, 3'car after 3'ear, to sow early strap-leaf red-top turnip seed, to produce turnips for the early New York market, such kind and desci-iption of turnips yielding a laige profit, and he, at time of purchase, stated that he wished this description and kind of seed for that purpose. The seed sold to IMount by Wolcott was sown upon the ground pre- pared for same by IMount, and the turnips produced therefrom were not early strap-leaf rod-top turnips, but turnips of a di/Tcrcnt kind and description, to wit, Russia, late, and not salable in maiket, and onl}- fit for cattle, and he lost his entire crop. The i)lainti(r proved that the 1 "Although the general rule is that a warranty will not extend to guard against defects that arc plain and obvious to the senses of the purchaser, and which reciuire no skill to detect, this has no application to cases where the vendor uses art to conceal, and does conceal, such defects. Chadsey v. Greene, 24 Conn. 562; Robertson v. Clarkson, 9 B. Mon. 507 ; Grant v. Shelton, .3 H. Mon. 423 ; Irving v. Thomas, 18 Me. 414. See also Kohl v. Lindley, .39 111. 201." Knnner r. Harding, 85 111. 264, 268. •See further. Tabor r. I'eter.s, 74 Ala. 90 ; Moncricf v. Wilkinson. 03 Ala. 373 ; Fletcher V. Young, 09 Ga. 501; Kagsdale v. Shipp, 108 (Ja. 817; Hansen v. Gaar, 63 Minn. 94; Bran- son V. Turi'.er, 77 JIo. 489; Hennett v. IJuclian, 7G N. Y. 330; I'imiev v. Andrus, 41 Vt. 631; French Code Civ. Art. 1642; German Burg. Gesetzbuch, §§ 459, 460. 678 WOLCOTT, ETC. CO. V. MOUNT. [CHAP. V. seed sold liim by Wolcott was not early strap-leaf red-top turnip seed, but seed of a different kind and description, to wit, Russia turnip seed, and that it produced no profit to him, and tiiat early strap-leaf red- top turnip seed on same ground in other years had produced large pro- fits to Mount, and on adjoining ground, prepared in same wa}', the same year, had produced great profits to tlie owner, and that Mount was damaged tliereby. It is agreed that Wolcott did not know that the seed he sold Mount was not early strap-leaf led-top turnip seed, and that he did not sell tlie seed to liim fraudulently, the said Wolcott having purchased the seed for early strap-leaf red-top turnip seed. It is also agreed that this kind of turnip seed cannot be known and distinguished, by the exam- ination through sight or touch, from Russia or other kinds, but only by the kind of turnips it produces after sowing, can it be known. Tlie Court of Common Pleas gave judgment for the plaintiff below for $99.12 damages. Argued at February Term, 1873, before Justices Bedle, Dalrimple, and Depue. For the plaintiff in certiorari, IT. G. Clayton. For the defendant, B. Gummere. Depue, J. The action in this case was brought on a contract of warranty and resulted in a judgment against the defendants in the action for damages. Two exceptions to the proceedings are presented by the brief sub- mitted. Tlie first touches the right of the plaintiff to recover at all. The second the measure of damages. In the absence of fraud or a warranty of the quality of an article, the maxim, caveat emptor, ai)plies. As a general rule, no warranty of the goodness of an article will be implied on a contract of sale. It has been held by the courts of New York, that no warranty what- ever would arise from a description of tiie article sold. Seixas v. Woods, 2 Caines, 48 ; Snell v. Moses, 1 Johns. 96 ; Sweet v. Colgate, 20 Johns. 196. In these cases the defect was not in the quality, but the article delivered was not of the species described in the contract of sale. In the well known case of Chandelor v. Lopus, Cro. Jac. 4, it was decided "tliat a bare affirmation that a stone sold was a bezoar stone, when it was not, was no cause of action. The cases cited fairly present the negative of the proposition on which the plaintiffs right of action depends. Chandelor v. Lopus was decided on the distinction between actions on the case in tort for a misrepre- sentation, in which a scienter must be averred and proved and actions upon the contract of warranty. 1 Smith's Lead. Cas. 283. Chancellor Kent, who delivered the opinion in Seixas v. Woods, in his Commen- taries expresses a doubt whether the maxim, caveat emptor, was cor- rectly applied in that case, inasmuch as there was a description in writing of the article sold, from which a warranty might have been inferred. 2 Kent, 479. And in a recent case before the Commission SECT. II.] WOLCOTT, ETC. CO. v. MOUNT. 679 of Appeals of New York, Earl, C, declared that Seixas v. Woods had been much questioned and could no longer be regarded as authority on the precise point. Hawkins v. Pemberton, 51 N. Y. 204 In the later English cases some criticism has been made upon the application of the term warranty to representations in contracts of sale, descriptive of articles which are known in the market by such description, per Lord Abinger in Chanter v. Hopkins, 4 M. & W. 404 ; per Erie, C. J., in Bannerman v. White, 10 C. B. n. s. 844. But in a number of instances it has been held that statements descriptive of the subject-matter, if in- tended as a substantive part of the contract, will be regarded in the first instance as conditions, on the failure of which the other party ma}- repudiate in toto, by a refusal to accept or a return of the article, if that be practicable, or if part of the consideration has been received, and rescission therefor has become impossible, such representations change their character as conditions and become warranties, for the breach of which an action will lie to recover damages. The rule of law is thus stated by Williams, J., in Behn v. Burness, as established on principle and sustained by authorit}', 3 B. & S. 755. In Bridge v. Wain, 1 Starkie, 504, no special warranty was proved, but the goods were described as scarlet cuttings, an article known in the market as peculiar to the China trade. In an action for breach of warranty, Lord Ellenborough held that if the goods were sold by the name of scarlet cuttings, and were so described in the invoice, an undertaking that they were such must be inferred. In Allan v. Lake, 18 Q. B. 560, the defendant sold to the plaintiff a crop of turnips, described in the sold note as Skirving's Sweedcs. The seed having been sown, it turned out that the greater part was not of that kind, but of an in- ferior kind. It was held that the statement that the seeds were Skir- ving's Swecdes, was a description of a known article of trade and a warranty. In Josling v. Kingsford, 13 C. B. n. s. 447, the purchaser recovered damages upon a contract for the sale of oxalic acid, where the jury foimd that the article delivered did not, in a commercial sense, come properl}' within the description of oxalic acid, though the vendor was not tlie manufacturer, and the vendee had an opportunity of insi)cc- tion (the defect not being discoverable by inspection), and no fraud was suggested. In Wieler v. Schillizzi, 17 C. B. 619, the sale was of " Cal- cutta linseed." The goods had been delivered, and the action was in form on the warranty implied from the description. The jury having found that the article delivered had lost its distinctive character as Calcutta linseed, by reason of the admixture of a foreign substance, the plaintiff recovered his damages upon the warranty. The doctrine that on the sale of a chattel as lieing of a particulnr kind or description, a contract is implied that the article sold is of tliat | kind or description, is also sustained by the following English cases: Powell V. Horton, 2 Bing. N. s. 668 ; Barr v. Gibson, 3 M. & W. 390 ; Chanter v. Hopkins, 4 M. & W. 399 ; Nichol v. Godts, 10 Exch. 191 ; Gompertz v.Bartlett, 2 E, «fe B. 849 ; Azeraar v. Casella, Law Rep. 2 C. P. 6S0 WOLCOTT, ETC. CO. V. MOUNT. [CHAP. V. 431, G77 ; and has been approved by some decisions in the courts of this country. Henshaw v. Robins, 9 Mete. 83 ; Borrekins v. Bevan, 3 Rawle, 23 ; Osgood v. Lewis, 2 Harr. & Gill, 495; Hawkins v. Pem- berton, 51 N. Y. 198. The right to repudiate the purchase for tlie non-conformity of the article deHvered, to the description under which it was sold, is univer- sally conceded. That right is founded on tiie engagement of the ven- dor, by such description, that the article delivered shall correspond with the description. The obligation rests upon the contract. Substan- tially, the description is warranted. It will comport with sound legal principles to treat such engagements as conditions in order to aflbrd the purchaser a more enlarged remedy, by rescission, than he would have on a simple warranty ; but when his situation has been changed, and the remedy, by repudiation, has become impossible, no reason sup- ported by principle can be adduced, why he should not have upon his contract such redress as is practicable under the circumstances. In that situation of affairs, the only available means of redress is by an action for damages. Whether the action shall be technically considered an action on a warranty, or an action for the non-performance of a con- tract, is entirely immaterial. The contract which arises from the description of an article on a sale by a dealer not being the manufacturer, is not in all respects co-exten- sive with that which is sometimes implied, where the vendor is the manufacturer, and the goods are ordered b}- a particular description, or for a specified purpose, without opportunity for inspection, in which case, a warrant}', under some circumstances, is implied that the goods shall be merchantable, or reasonably fit for the purpose for which they were ordered. In general, the only contract which arises on the sale of an article by a description, by its known designation in the market^ is that it is of the kind specified. If the article corresponds with that description, no warranty is implied that it shall answer the particular purpose in view of which the purchase was made. Chanter v. Hop- kins, 4 M. & W. 414; OUivant v. Bayley, 5 Q. B. 288; Windsor v. Lombard, 18 Peck. 55 ; Mixer v. Coburn, 11 Mete. 559 ; Gossler v. Eagle, &c., Co , 103 Mass. 33L The cases on this subject, so produc- tive of judicial discussion, are classified by Justice Mellor, in Jones V. Just, Law Rep., 3 Q. B. 197. Nor can an}- distinction be main- tained between statements of this character in written and in oral contracts. The arguments founded on an apprehension that where the contract is oral, loose expressions of judgment or opinion pending the negotiations, might be regarded as embodied in the contract, contrary to the intentions of parties, is without reasonable foundation. It is alwa^'s a question of construction or of fact, whether such statements were the expression of a mere matter of opinion, or were intended to be a substantive part of the contract, when concluded. If the contract is in writing, the question is one of construction for the court. Behn V. Burness, 3 B. & S. 751. If it be concluded by parol, it will be for the determination of the jury, from the nature of the sale, and the cir- SECT. II.] WOLCOTT, ETC. CO. V. MOUNT. 681 cumstances of each particular case, whether the language used was an expression of opinion, merely leaving the buyer to exercise his own judgment, or whether it was intended and understood to be an under- taking which was a contract on the part of the seller. Lomi v. Tucker, 4 C. & P. 15 ; De Sewhanberg v, Buchanan, 5 C. & P. 343 ; Power v. Barham, 4 A. «& E. 473. In the case last cited, the vendor sold by a bill of parcels, " four pictures, views in Venice — Canaletto ; " it was held that it was for the jury to say, under all the circumstances, what was the effect of the words, and whether they implied a warranty of genuineness, or conveyed only a description or an expression of opin- ion, and that the bill of parcels was properly laid before the jury with the rest of the evidence. The purchaser may contract for a specific article, as well as for a \ particular quality, and if the seller makes such a contract, he is bound by it. The state of the case presented shows that the plaintiff inquired for seed of a designated kind, and informed the defendants that he wanted it to raise a crop for the New York market. The defendants showed him the seed, and told him it was the kind he inquired for, and sold it to him as such. The inspection and examination of the seed were of no service to the plaintiff. The facts and circumstances at- tending the transaction were before the court below, and from the evidence, it decided that the proof was sufficient to establish a contract of warranty. The evidence tended to support that conclusion, and this court cannot, on certiorari, review the finding of the court below, on a question of fact, where there is evidence from which the conclusion arrived at may be lawfull}' inferred.^ Note. — In Kenner v. Harding, 85 111. 264, 268, the court said : "In determining wliether there was in fact a warranty, the decisive test is, whether the vendor assumes to assert a. fact of which the buyer is ignorant, or merely states an opinion or judg- ment upon a matter of which the vendor has no special knowledge, and on wiiicli the buyer may be expected, also, to have an opinion and to exercise his judgment. In the former case, there is a warranty ; in tlie latter, not. Benjamin on Sales, 454. And this is substantially the rule recognized by this court in Adams v. Johnson, 15 111. 345." In Stroud v. Pierce, 6 Allen, 413, 416, the court said : " The second excejttiou relates to the ruling of the jtidge, that ' a representation that a pianoforte is well made and will stand up to concert pitch is a representation of fact, which, if proved to be false, as between a seller making the representation and a buyer relying upon it, would authorize the buyer to recover,' &c- The word ' rej)resentation ' was undoulitcdly used here as synonymous with affirmation ; and there can be no doubt that such an affirmation is a warranty. It relates to the quality of the article, and is like an affirmation that a horse is sound and will work well in a harness. The defendant contends that it shoulrl have been left to the jury to find whether this language was used with the intention of affirming the fact, or of expressing an opinion. IJiit the intent of the party is immaterial. The legal proposition stated by the judge was correct." See further to the same effect. Ormsby v. Budd, 72 la. 80 ; McClintock v. Emick, 87 Ky. 160 ; Hawkins r. I'eniberton, 51 N. Y. 198; l-'airbank.s Canning Co. i'. Jlctzger, 118 is.Y. 260 ; Ingrahani v. Union H. li. Co., 19 K. I. 350 ; ilerron v. Dibbrell, 87 Va. 289. 1 A portion of the opinion is omitted which licld that the plaintiff had been riglitly allowed to recover as danniges the profits he would have inade, the defendants having had notice of the use to which the seed was to be put, and the amount of profit being susceptible of proof. GS2 HOLMES V. TYSON. L^HAP. V, HOLMES, Appellant, v. TYSON. Pennsylvania Supreme Court, January 25, 1892. [Reported in 147 Pennsijlvania State, 305.] Per Curiam. This was an action brought for a breach of warranty in the sale of a horse. The learned judge below directed a nonsuit, for the reason that the evidence was not sufficient to show a warranty. In this we think he was right. At the time the transaction was closed, and the money paid, there was no warrant}'. On the contrary, the plaintiff" said to the defendant: "I have nothing to show that you warrant this horse as you I'epresent him," to which the defendant replied: "The horse is just the same as when you drove him on Monday." This is very far from being a warrant}-. It was, at most, an assertion that the horse was in the same condition as on the previous Mondav, and there was nothing in the ease to show that it was not true. There was evidence of previous statements having been made to the plaintiff", that the horse was kind, sound, and gentle, but the defendant did not warrant him to be so. It was held in Jackson v. Wetherill, 7 S. & R. 480, that an assertion b}' the vendor to the vendee, at the time of selling a mare, that he is sure she is safe, and kind, and gentle in harness, amounts only to a representation, and does not constitute a warranty, or express promise that she is so. In McFarland v. New- man, 9 Watts, 55, the action was assumpsit on an alleged warranty in tlie sale of a horse, and the court below charged the jury that " a posi- tive averment, made by the defendant at the time of the contract, is a warranty; that it is a part, or parcel, of the contract." This ruling was reversed in this court, Gibson, C. J., saying in his opinion: "As the cause goes back to another jury, it is proper to intimate the prin- ciple on which a correct decision of it must depend. Though, to constitute a warranty requires no particular form of words, the naked averment of a fact is neither a warrant}' of itself nor evidence of it. In connection with other circumstances, it certainly may be taken into consideration ; but the jury must be satisfied, from the whole, that the vendor actually, and not constructively, consented to be bound for the truth of his representation. Should he have used expressions fairly importing a willingness to be thus bound, it would furnish a reason to infer that he had intentionally induced the vendee to treat on that basis ; but a naked affirmation is not to be dealt with as a warranty, merely because the vendee had gratuitously relied on it ; for not to have exacted a direct engagement, had he desired to buy on the vendor's judgment, must be accounted an instance of folly. Testing the ven- dor's responsibility by these principles, justice will be done without driving him into the toils of an imaginary contract." We have quoted this extract from the opinion in McFarland v. New- man, because it bears upon another point. It was contended, in the SECT, II.] EOGEES V. WOODRUFF ET AL. 683 case in hand, that the question whether there was a warranty should have been submitted to the jurj-. As the warranty, if any, is to be found in the oral testimony, it would undoubtedly be the province of the jury to determine it, if there was a conflict of evidence. Had the language used been equivocal ; had the one party asserted a warrantj', and the other denied it, the matter should have been submitted to the jury. But the plaintiff's own testimony showed there was no warranty. There was the mere assertion of a fact, which the cases cited show was not a warranty, nor the evidence of one. Under such circumstances, it would have been the duty of the court to instruct the jury that, upon the undisputed facts, there was not sufficient evidence of a warranty. As the action was upon a warranty, and no warranty was shown, the learned judge did not err in directing a nonsuit. Judgment affirmed.^ JOSEPH H. ROGERS v. FRANKLIN WOODRUFF et al. Ohio Supreme Court, December Term, 1873. [Reported in 23 Ohio Slate, 632.] Error to the Superior Court of Cincinnati. Franklin Woodruff and others, the plaintiffs in the Superior Court, sued to recover the price of eight hundred and eighty-three sacks of Liverpool salt they alleged they had sold and delivered to the defend- ant, at S2.10 per sack. The defendant met this demand by a counter- claim, by which he alleged that, on the 13th day of October, 18G2, he made a contract in writing with George W. Phillips, who was the duly authorized agent of plaintiffs, in that behalf, by which contract, plain- tiffs sold to the defendant one thousand sacks coarse Liverpool, and two thousand sacks fine Liverpool salt, at two ten one-hundredths dollars per sack, all of wiiich was to be delivered by the 15th day of November, then next ensuing, to be paid for by the defendant upon the delivery thereof. He further averred that the plaintiffs ftiiled to deliver any of said salt by the 15th of November; that for some time after that date he was ready and willing to receive the same, and so notified plaintiffs; that between that date and December 8th, they did deliver tiie eight hundred and eighty-tliree sacks mentioned in the petition ; that failing to deliver the remainder he, on December 8th, notified them he would not receive any more, but should hold them responsible in damages. He claimed damages at the rate of ninety cents per sack lor the salt not delivered. The i)laintiffs replied, denying that they contracted to deliver the salt by November 15th, and averring, among other things, that the 1 A doctrine somewhat similar to that held by the Pennsylvania court is held in House V. Fort, 4 Blackf. 204 ; .Jones v. Quick, 28 Ind. 125 ; Kircher ?;. Conrad, 9 Mont. 191 ; Enger v. Uawley, 62 Vt. 104. (Conf. Hobart v. Young, 03 Vt. 303.) See also Ilorton V. Green, 66 N. C. 596. Q84 ROGERS V. WOODRUFF ET AL. [CILVP. V. contract made by them with defendant was conditional — the salt beinra ; Edick V. Crim, 10 Barb. 445 ; Hopkins v. Griuuell, 28 Barb. 533, 537 ; Scranton i-. Clark, 39 N. Y. 220 ; Andres v. Lee, 1 Dev. & Bat. Eq. 318 ; Scott v. Hix, 2 Sneed, 192. But this has been doubted. In Gould v. Bourgeois, supra, Depue, J., delivering the opinion of the court, said : " In this country the distinction between sales where the vendor is in posses- sion and where he is out 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 English rule. 2 Benj. Sales (Corbin's ed.), § 962, note 21 ; Biddle, Warranty, §§ 246, 247. The American editor of the ninth edition of Smith's Leading Cases, in the note to Ciiandelor 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 pcssession, remarks that, in most of them, what was said on that point was obiter dicta, and observes ' that there seems no reason why, in every case where the vendor purports to sell an absolute and perfect title, he should not be held to warrant it.' i Sm. Lead. Cas. (Edsou's ed.) 344." In Whitney u. Heywood, 6 Cush. 82, 86, Dewey, J., says " possession here must be taken in its broadest sense," and "the ex- cepted cases must be substantially cases of sales of the mere naked interest of persons having no possession, actual or constructive, and in such cases no warranty of title is implied;" and this language is quoted with approval in Shattuck v. Green, 104 Mass 42, 45. There can be no doubt that whether a vendor is in or out of possession, he may by appropriate words sell simply his interest in jtroperty without warranty. First National 1 Byles and Keating, JJ., delivered concurring opinions. SECT. II.] JONES V. JUST. 693 Bank v. Massachusetts Loan & Trust Co., 123 Mass. 330; Gould v. Bourgeois, supra ; Krumbliaar v. Birch, supra ; Peuchen v. Imperial Bank, 20 Out. Rep. 325. In some jurisdictions it is held that no action lies for breach of a warranty of title until the vendee's possession has been interfered with. Gross y. Kierski, supra; Lin- ton V. Porter, 31 111. 107 ; Wanser v. Messier, 29 N. J. L. 256 ; Burt v. Dewey, 40 N. Y. 283 (compare McGiffin v. Baird, 62 N. Y. 329 ; Cahill v. Smith, 101 N. Y. 355) ; Krum- bhaar v. Birch, supra. See also Randon v. Toby, 11 How. 493. In other jurisdictions the fact that a superior title or encumbrance exists is sufficient ground for action. Chan- cellor V. Wiggins, 4 B. Mou. 201 ; Perkins v. Whelan, 116 Mass. 542; Matheny v. Mason, 73 Mo. 677, 680 ; Word v. Cavin, supra. See also Harper v. Dotson, 43 la. 232 ; Sargent v. Currier, 49 N. H. 310. (h) Warranty of Quality. JONES V. JUST. In the Queen's Bench, February 17, 1868. [Reported in Law Reports, 3 Queen's Bench, 197.] The judgment of the court (Cockburn, C. J., Blackburn and Mellor, JJ.), was delivered by Mellor, J. In this case, on the trial before Blackburn, J., at Liver- pool, it appeared that the plaintiffs, through Messrs. Beneke & Co., their brokers, entered into a contract with the defendant for the pur- chase of a quantity of Manilla hemp, to arrive. The sold note was in the following terms: "Liverpool, 19th Oct., 18G5. We have this da^' sold for you the following goods to Messrs. J. A. Beneke & Co. J. II. V. 200 bales Manilla hemp, expected to arrive p. ' Richard Cobden,' @ Singapore, for Liverpool, . . . 309 . . . expected to arrive pr. ' Christopher Newton,' @ Singapore for Liverpool, . . . 209 . . . expected to arrive pr. ' Fortitude ' . . . @ ( II 193 } Singapore for London, "] u ti i f ■ • • expected to arrive pr. ' Opher,' @ Singapore for Liverpool, @ £38 10.9. pr. ton of 2,240 lbs., cost freight and insurance. Shipping weights. Payment, cash against shipping documents on 2l8t Oct., 1865, less 2^% discount." The shipping documents were duly delivered to the plaintiffs, and the price was paid. All the vessels named in the contract arrived in due course, with the respective numbers of bales of hemp having marks corresponding to those specified in the contract on board ; and the bales were delivered to the plaintiffs. On examination of the bales it was found that the whole of those marked J. II. V. were in such a state as to afford strong evidence that they had at some time, prob- abl}' from a shipwreck when on the voyage from Manilla to Singapore, been wetted through with salt water, had afterwards been un[)acked and dried, and then repacked in the bales which were afterwards shipped at Singapore. (594 JONES V. JUST. [chap. v. Manilla hemp is divided into several qualities. The hemp in the bales in question, if in good condition, would have been what is called " fair current Manilla hemp," which is not the lowest quality; but in all the bales the hemp was damaged to some extent, though not so far as to make it lose the character of hemp. After some correspondence between the parties, the hemp was sold by auction by the plaintiffs' orders as " Manilla hemp, with all faults," and at the auction it realized about 75 per cent of the price which similar hemp would have fetched if undamaged. The price of hemp had risen considerably since the contract, so that the proceeds of the sale were very nearly equal to the invoice price. There was no at- tempt to show that the defendant knew of the state in which the hemp had been shipped at Singapore. At the close of the plaintiffs' case, Mr. Brett, for the defendant, con- tended that, in point of law, under this written contract, there was no further condition or warranty than that the bales on their arrival should answer the description of bales of Manilla hemp, which they did, as was proved by the fact that the hemp, though sold with a stigma upon it, fetched a price only 25 per cent below that of sound hemp ; and that as to quality or condition there was no warranty ; that consequently the maxim caveat emptor applied. The learned judge expressed an opinion adverse to this view. He said : '' I think that the question is for the jury, whether what was supplied under this contract was, when shipped at Singapore, such as to answer the description of reasonably merchantable Manilla hemp, that being the warranty which, I think, the law implies in a contract to supply, as this is : though it would be different in a sale of specific things which the purchaser might examine, or of things sold by sample. And I think the question whether it is fairly and reasonably merchant- able, is a question of more or less, which must be left to the jury as reasonable men to determine." The judge then reserved leave to move to enter the verdict for the defendant, if there was no evidence to go to the jury of a breach of warranty. Upon this intimation of opinion, the counsel addressed the jury, and the case was left to them substantially to the effect above stated ; and the jury were further told that if they found for the plaintiffs, the damages should be measured by the rate which the hemp was worth when it arrived compared with the rate which the same hemp would have realized had it been shipped in the state in which it ought to have been shipped : thus, in effect, giving the plaintiffs the benefit of the rise in the market. The jury found for the plaintiffs, damages £756. Mr. Brett, in the ensuing term, obtained a rule to enter the verdict for the defendant, pursuant to the leave reserved ; or for a new trial, on the ground of misdirection as to the measure of damages, which he contended ought at most to have been the diflTerence between the value of the article actually delivered, viz., fair average Manilla hemp in a SECT. II.] JONES V. JUST. 695 damaged state, and the value of sound Manilla hemp of the lowest qualit}' which might have been supplied at Singapore under this con- tract. The other objections to the direction were substantially onl}' varied modes of putting the point reserved. We thought that if the contract had the effect which the direction stated it to have, the true measure of the damages was given, as it put the plaintiffs in the position in which they would have been if the con- tract had been fulfilled ; but we took time to consider the question as to what the contract really was, which is no doubt one of importance and difficult}'. After careful consideration, we are of opinion that Blackburn, J.'s, direction was substantiall}' correct. On the argument before us, it was contended that the contract was performed on the part of the defend- ant by the shipping at Singapore of an article which answered the de- scription of " Manilla hemp," although at that time it was so damaged as to have become unmerchantable. It was said that there being no fraud on the part of tlie vendor, and both parties being equally igno- rant of the past history and actual condition of the article contracted for, and neither of them having had the opportunit}' of inspecting it, it was the dut}' of the vendees to have stipulated for a merchantable article if that was what thej' intended to contract for. In other words, / it was said that the maxim, caveat emptor, applied in such a case, in the same wa}' as on a sale of a specific article by a person not being the manufacturer or producer, even though the defect was latent and not discoverable upon examination. We are of opinion that there is a great distinction between the present case and the sale of goods in esse, which the buyer may inspect, and in which a latent defect may exist, although not discover- able on inspection. The cases which bear upon the subject do not appear to be in con- flict, when the circumstances of each are considered. They may, we think, be classified as follows : — First, where goods ai-e in esse, and may be inspected by the buyer, and there is no fraud on the part of the seller, tiic maxim caveat emptor applies, even though the defect which exists in them is latent, and not discoverable on examination, at least where the seller is neither the grower nor the manufacturer: Parkinson v. Lee, 2 East, 314. The buyer in such a case has the opportunity of exercising his judgment upon the matter; and if the result of the inspection be un- satisfactory, or if he distrusts his own judgment, he may if he chooses require a warranty. In such a case, it is not an implied term of the contract of sale that the goods are of any particular quality or arc merchantable.^ So in the case of the sale in a market of meat, which 1 The nnly jurisdictions in the United States where the rule of caveat emptor is wholly disregarded are Louisiana, where the civil law ])revails, McLellan r. Williams, 11 La. An. 721 ; and Sing. 533, 540, in 1829. The contract was for copper sheathing for a ship. The question proposed b}- Ludlow, Serjt., in ar- gument was, " whether the law will, according to the dictum of Lord Tenterden, in Gray v. Cox, supra, lay upon the seller or manufacturer an obligation to warrant in all cases that the article which he sells shall be reasonably fit and proper for the purpose for which it is intended, and render him responsible for all the consequences which may result, if it shall be found not to answer the purpose for which it was designed, and that, on account of some latent defect of which he was ignorant, and which shall not be proved to have arisen from any want of skill on his l)art, or tlie use of improper materials, or any accident against which luiman prudence might have l)een capable of guarding him." Here, therefore, tlie whole proposition, with and without limitations, was plainly laid before the judges for their consideration. The answer given by Best, C. J., was : "I wish to put the case on a broad principle. If a man sells an article he thereby warrants that it is merchantable, — that it is fit for some purpose. If he sells it for that [)articular purpose, he thereby warrants it fit for that purpose. . . . Whether or not an article has been sold for a particular purpose is, in- deed, a question of fact; but if sold for such purpose, the sale is an nndertaking that it is fit. . . . The law then resolves itself into this, — ' SECT. II.] EANDALL V. NEWSON. 703 that if a man sells generall}', he undertakes that the article sold is fit for some purpose ; if he sells it for a particular purpose, he undertakes that it shall be fit for that particular purpose." Nothing can be more clear than that the rule is advisedl}' enunciated as a warranty without limitation. Brown v. Edgington, 2 M. & G. 279, is to the same effect. In Wieler v. Schilizzi, 17 C. B. 619, 622 ; 25 L. J. (C. P.) 89, the con- tract was for " Calcutta linseed." Jervis, C. J., told the jury that the question for them to consider was, " whether there was such an admix- ture of foreign substances in it as to alter the distinctive character of the article, and prevent it from answering the description of it in the contract." Cresswell, J., said, "They were to say whether the article delivered reasonabl}- answered the description of Calcutta linseed." Crowder, J., said, "The jury in effect found that the article delivered did not reasonably answer the description in the contract." Willes, J., said, " The purchaser had a right to expect, not a perfect article, but an article which would be salable in the market as Calcutta linseed. If he got an article so adulterated as not reasonably to answer that de- scription, he did not get what he bargained for." In this case it is to be observed that all the judges adopted the form of stating the princi- ple which was used by Lord EUenborough in Gardiner v. Gray, supra. In Nichol v. Godts, 10 Ex. 191 ; 23 L. J. (Ex.) 314, the contract was for " foreign refined rape oil, warranted only equal to samples." The oil *off'ered was equal to samples, but both samples and oil were adulterated. Parke, B., told the jury "that the statement in the sold note as to the samples related to the quality onlj' of the article, and that according to the contract the defendant was entitled to have rape oil delivered to him." Piatt, B., in banc, said: "I understand that the oil to be delivered was to be equal to the samples in quality. But the de- fendant did not refuse to accept the oil tendered to him on the ground that it did not equal the samples, but on account of its not being foreign refined rape oil at all. And the learned judge told the jury that if they should think that was so, the defendant was not bound to accept it. That direction was perfectly correct. If the jury had found that the article which the plaintiff tendered was known in the market under the name and descrii)tion of foreign refined rape oil, the plaintiff would have been entitled to succeed ; but the question was put to the jury, and they were of opinion that it was not known as such." And Parke, B., said " the evidence went to show that the oil offered did not answer the de- scription of the article sold." This form of stating the rule was distinctly adopted in Josling v. Kingsford, 13 C. B. (n. s.) 447; 32 L. J. (C. P.) 94, by Erie, C. J., and Willes, J. Erie, C. J., told the jury " that the defendant could only perform his part of tlie contract by delivering that which in commercial language might properly be said to come under the denomination of ox- alic acid ; and that if they should be of opinion that the article delivered by the defendant as oxalic acid did not properly fulfil that description they should find for the plaintiff." 41 704 llANDALL V. NEWSON. [ CHAP. V. I have cited these cases, and the principles laid down in them, in order clearly to ascertain what is the primary or ultimate rule from which the rules which have been applied to contracts of purchase and sale of somewhat different kinds have been deduced. Those different rules, as applied to such different contracts, are carefully enumerated and rec- ognized in Jones v. Just, Law Rep. 3 Q. B. 197. In some contracts the undertaking" of tlie seller is said to be only that the article shall be mer- chantable ; in others, that it shall be reasonably fit for the purpose to which it is to be applied. In all, it seems to us, it is either assumed or expressly stated, that the fundamental undertaking is, tliat the article offered or delivered shall answer the description of it contained in the contract. That rule comprises all the others ; they are adaptations of it to particular kinds of contracts of purchase and sale. You must, therefore, first determine from the words used, or the circumstances, what, in or according to the contract, is the real mercantile or business description of the thing which is the subject-matter of the bargain of purchase or sale, or, in other words, the contract. If that subject- matter be merel}' the commercial article or coramodit}', the undertaking is, that the thing offered or delivered shall answer that description, that is to say, shall be that article or commodity', salable or merchantable. If the subject-matter be an article or commodity to be used for a partic- ular purpose, the thing offered or delivered must answer that descrip- tion, that is to say, it must be that article or commodity, and reasonably fit for the particular purpose. The governing principle, therefore, is that the thing offered and delivered under a contract of purchase and sale must answer the description of it which is contained in words in the contract, or which would be so contained if the contract were accurately drawn out. And if that be the governing principle, there is no place in it for the suggested limitation. If the article or commodity offered or delivered does not in fact answer the description of it in the contract, it does not do so more or less because the defect in it is patent, or latent, or discoverable. And accordingly there is no suggestion of any such limitation in any of the judgments in cases relating to contracts of pur- chase and sale. Unless, therefore, there is some binding authority to the contrary, we ought not now to introduce b}' implication a limitation into contracts of purchase and sale which has never been introduced before. It is said that the case of Readhead v. Midland R}-. Co., Law Rep. 4 Q. B. 379, 38G, in error is such a binding authorit}'. But in answer to the cases cited of the implied undertaking in contracts of purchase and sale, Montague Smith, J., says : "The counsel for the j^laintiff re- feiTcd 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 warrant}' that the goods supplied shall be reasonably fit for tliat purpose. . . . But the agreement to sell and suppl}' for a price which ma}' 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 SECT. II.] RANDALL V. NEWSON. 705 it/' It is true that the learned judge afterwards says : " Even in the cases of contracts to supply goods it ma}- be a question, on which it is not now necessar}' to express an opinion, how far and to wliat 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 pre- vent 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,. Law Rep. 5 Q. B. 501, 503, is based upon Readhead v. Midland Rj'. Co., supra, and is therefore of 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 ex- pressed b}- Montague Smith, J., does recognize the limitation as appli- cable to contracts of purchase and sale (Law Rep. 4 Q. B. 503), But the statement of the learned judge was not necessar}', and therefore is not binding, 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 defendant was not re- stricted by the limitations applied to the contract of carriage in Read- head V. Midland Ry. Co., sujyra, and that so long as the verdict in this case stands it imposes a liability on the defendant. We are, therefore, of opinion that the judgment 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 be- half of the plaintiff for a new trial, on the ground of misdirection as to the measure of damages. In consequence of the decision that the de- fendant was not liable at all, it became useless to argue the point. But Mr. Gates has renewed it before us, and has asked for a new trial on the ground of such misdirection, desiring to have such new trial confined to the question of damage only. We think that a question should have been left to the jur}' similar to that which was left in Smith v. Green, 1 C. P. D. 92, namel}-, whether the injury to the horses was or was not a natural consequence of the defect in the pole. There has been a mis- carriage 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 reasonabl}- fit, we cannot think that the findings of the jury as to the questions left to them in order to detewTiine the liabilit}' of the defendant arc so satis- factory as to authorize us to confine the question to be raised on a new trial to the damages only. We think that the judgment of tlic Court of Queen's Bench should be reversed, and that the order should be for a new trial generally, if the plaintiff elects to have a new trial at all. If 706 DRUMMOND V. VAN INGEN. [CHAP. V. he does not, the verdict and judgment for the plaintiff for £3 will stand. The plaintiff has succeeded on the appeal, and should therefore have the costs of the appeal. Judgment reversed} JAMES DRUMMOND & SONS v. E. H. VAN INGEN & Co. In the House of Lords, April 1, 1887. [Reported in 12 Appeal Cases, 284.] Appeal from a decision of the Court of Appeal. The following statement of the facts and pleadings is taken from the judgment of the Earl of Selborne. The respondents, in Jul}-, 1883, ordered from the appellants, who are worsted cloth manufacturers at Bradford, certain goods, described in the contracts as, " mixt worsted coatings," which were to be, in "quality and weight," equal to certain numbered samples, which the appellants had previously furnished to the respondents. The goods were of a class well-known in the trade under the denomination of "corkscrew twills." They were delivered to the respondents, whose object (known to the appellants) was to sell them to clothiers or tailors in the United States of America. All, or great part of them, were, in fact, disposed of to various customers of the respondents in the United States ; but they were returned upon the respondents' hands, as not suitable for the purposes of that trade. They were afterwards sold b}^ auction, at a loss ; and an action (for the price of the goods) having been brought by the appellants against the respondents, a counter-claim was made by the respondents to recover damages against the appellants, on the ground that the goods were not merchantable, as they ought to have been. The goods were, in point of fact, made exactly' in the same manner as tlie samples ; and the defect alleged to exist in them, viz., that of "slipperiness" (or want of such cohesion in the texture of the cloth, between the warp and weft, as was requisite to prevent tliem from giving way under the strain of ordinar}' wear when made up into coats in the usual manner) existed equally in those samples. The defence to the counter-claim was, in substance, that the goods were exactly what had been ordered ; that there was no implied war- ranty that they should be merchantable for any purpose, for which goods of such a make and texture would not be fit ; that goods of that 1 Kellv, C. B. delivered a brief concurring opinion. Preist't'. Last, [1903] 2 K. B. 148; Frost v. A.ylesbury Dairy Co., [1905] 1 K. B. 608; Rodgers v. Niles, 11 Ohio St. 48; Leopold v. Van Kirk, 27 Wis. 152, ace. But see Hoe v. Sanborn, 21 N. Y. 552. SECT. II.] DRU.MMOND V. VAN INGEN. 707 particular make and texture were not wholly ^salable, or incapable of being made up (if the tailor did his work in a manner suitable to their quality) into coats which might endure reasonable wear ; that the de- fect, such as it was, was one of degree only, and was so far patent, that by such examination of the sample as the manufacturer had a right, under the circumstances, to assume the merchant to have made, it might, and ought to, have been known. An order having been made for the trial of certain preliminary issues in fact by Day, J,, without a jury, before any of the other questions of fact, that learned judge found upon the issues as follows : — - 1. That there was an implied warranty on the sale of the goods that the cloth should be merchantable generally as worsted coatings, and should be properly manufactured, and should be suitable to be made up into coats in the ordinary course of tailors' work. 2, That the plaintiffs did sell the cloth for the purpose of being made up into coats in the ordinary course of tailors' work. 3. That it was an express term of the contract of sale that the cloth should be efficiently woaded and dyed so as not to fade unduly. 4. That the cloth was not mer- chantable as worsted coating, and was not properly manufactured and suitable to be made up into coats in the ordinarj- course of tailoring, and was not efficiently woaded and dyed within the meaning of the contract. 5. That the cloth was sold by sample in the sense that it was to be similar to a sample produced in respect of weight and qualitv, and that the terra "quality" covers strength as distinguished from rottenness in cloth, but the judge is not satisfied that the terra qualitj' has been ordinarily applied to such a defect as is alleged to exist in the cloth delivered under the contract, that is to say, slipperiness of weft under warp. G. That tlie cloth did correspond with the sample. 7. That the sample was made to the defendants' order, and was seen and ap- proved of by them as to pattern, color, and generally as to handle. 8 and 9. That the defects both of structure and color in the cloth and in the sample were latent, and were not apparent or discoverable upon sucli inspection as was ordinary and usual upon sales of worsted cloths of this class. The Court of Appeal (Lord Esher, M. R., and Fry, L. J.) affirmed the findings of Da}-, J., upon the ground that there having been a conflict of evidence tiic court was not so well able to decide as the learned judge to which set of witnesses credit ought to be given, and ought not therefore to overrule his finding. From this decision the present appeal was brought. Sir R. Webster, A.-G., and R. 0. B. Lane, for the appellants. Waddy, Q. C, and E. Tindal Atkbison, Q. C. ( Wilberforce, with them), for the respondents. Lord IIeiisciiell. My Lords, I think that the general principles of law which have to be applied to the facts of this case are well settled and beyond question. It was laid down in Jones v. Bright, 5 Bing. 533, that where goods are ordered of a manufacturer for a particular pur- 708 DRUMMONU V. VAN INGEN. [CHAP. V. pose, he impliedly warrants that the goods he supplies are fit ^or that purpose. Tliis view of the law has been constantl}' acted upon from the time of that decision, and was not impeached b}^ the learned counsel for the appellants. It is equally well settled that upon a sale of goods of a specified description, which the purchaser has no oppor- tunity of examining before the sale, the goods must not only answer that specific description, but must be merchantable under that descrip- tion. This doctrine was laid down in Jones v. Just, Law Rep. 3 Q. B. 197, where all the previous authorities on the point were reviewed. In the case of Mody v. Gregson, Law Rep. 4 Ex. 49, in the P^xchequer Chamber, the decision in Jones v. Just was approved of and acted upon, and it was further held that the implied warranty that the goods supplied are merchantable was not absolutely excluded by the fact that the goods were sold by sample, and that the bulk precisely corresponded with it, but was onlj' excluded as regards those matters which the purchaser might, b}- due diligence in the use of all ordinary and usual means, have ascertained from an examination of the sample. I think that the law enunciated in these cases is sound and not open to doubt. I proceed to consider its application to the facts of the case before us. The plaintiffs were maiiufacturers at Bradford ; the defendants were merchants dealing in woollen and worsted cloths, carrying on business in Huddersfield and New York. The order for the goods in respect of which the present litigation has arisen was given by the defendants to the plaintiffs in 1883. The goods ordered were described as " worsted coatings," and thej' were to cor- respond in quality and weight with patterns which had been supplied b}' the plaintiffs. The}' were of a description known in the trade as "corkscrew," having the warp on either side and the weft not exposed to view. The goods, when deUvered, were shipped to the United States, and sold by the defendants to various purchasers there. It turned out, as I think the evidence establishes, that owing to the mode of manu- facture there was a great tendency in the warp to slip, and this to so serious an extent that when made into garments in the ordinarj' manner the seams gave way with no more than ordinarj- tension and the braid became detached from the cloth. In consequence of this defect many purchasers from the defendants returned the goods to them, or com- pelled them to make allowances, for which they sought compensation by counter-claim in the present action. It is important to observe that the contract for 1883 was not the first dealing between the parties. The defendants had purchased of the plaintiffs a quantity of "cork- screw " worsted coatings in the previous year, and I cannot see any evidence in the correspondence which passed, or in the oral communica- tions, to show that it was intended I)}- either of the parties to the con- tract of 1883 that the goods should be of a different character to those of the previous 3'ear in an\' particular material to the controversy which has to be determined in this action. It is true that the purchasers SECT. II.] DRUMMOND V. VAN INGEN. 709 desired goods of a somewhat softer "handle;" but I think it is abundant!}' clear on the evidence that this was a matter of " finish," and that it was not the endeavor to give a softer ' ' handle " which led to the defect of excessive slipping. I have said that the goods were, by the order, to conform to certain patterns supplied by the plaintiffs to the defendants, and approved of by them. There is no doubt that the bulk of the goods corresponded in every particular with these patterns ; and this the plaintiffs allege, is a complete answer to the defendants' claim. The tendency to slip is not, they insist, properly to be called a defect but a characteristic of the manufactured article, which existed in the sample just as much as in the bulk of the goods. I do not think it is very material what name is given to it ; but I confess it strikes me that a characteristic arising from a particular mode of manufacture which renders the manufactured article less useful for the purpose for which such an article is ordinarily used, without, as far as appears, any counterbalancing advantage, may well be called a defect. I think it is proved by the evidence that this defect existed to such an extent that the worsted coatings could not be used for the purpose of being made into coats in the manner usual with goods of the same general description and quality, and that they could only be made into garments capable of resisting ordinary tension by the adoption of special precautions both in regard to breadth of seam and method of sewing. The question arises whether, in these circumstances, the plain- tiffs have complied with their contract hy delivering coatings precisely corresponding in quality and weight with the patterns, or whether they are liable to the defendants. Let me consider, first, how the case would have stood if no samples had been supplied. Suppose the defendants had simply ordered worsted coatings similar to those the}' had purchased in the previous year, but with a difference of color, design, and handle. Could the plaintiffs have justified supplying under such an order coatings such as those which have given rise to this litigation? It is true that the purpose for which the goods were required was not, as in Jones v. Bright, supra, stated in express terms, but it was indicated b}' the very designation of the goods, " coatings." I think that upon such an order the merchant trusts to the skill of the manufacturer, and is entitled to trust to it, and that there is an implied warranty that the manufactured article shall not by reason of the mode of manufacture be unfit for use in the manner in which goods of the same qualit}' of material, and the same general character and designation, ordinaril}' would be used. I think too that where the article does not comply witli such a warranty it may properly be said to be uninorchantalde in the sense in which that word is used in relation to transactions of tliis nature. It was urged for the appellants by the Attorney-General, in his able argument at the bar, that it would be unreasonable to require that a manufacturer should be cognizant of all the purposes to which the 710 DRUMMOND V. VAN INGEN. [CHAP. V. article he manufactures might be applied, aud that he should bo acquainted witli all the trades in wliich it may be used. I agree. "Where the article may be used as one of the elements in a variety of other manufactures, I think it may be too much to impute to the maker of this common article a knowledge of the details of every man- ufacture into which it may enter in combination with other materials. But no such question arises here. There seems nothing unreasonable in expecting that the maker of " coatings" should know that they are to be turned into coats and other garments, and that he should further know what coatings will and what will not be capable of use for this purpose in the ordinary methods. It seems to me not open to doubt that in the case which I have supposed the manufacturer would be liable. Does it then make any difference that the plaintiffs furnished patterns which were approved of by the defendants, and that the goods delivered were in complete con- formity with their patterns? Except upon the assumption (with Avhicli I will deal presently) that the patterns ought to have conveyed to the defendants knowledge of the defect of which they complain, I cannot think that it does. When a purchaser states generall}' the nature of the article he re- quires, and asks the manufacturer to supply specimens of the mode in which he proposes to carry out the order, he trusts to the skill of the manufacturer just as much as if he asked for no such specimens. And 1 think he has a right to rel}' on the samples supplied representing a manufactured article which will be fit for the purposes for which such an article is ordinarily used, just as much as he has a right to rel}' on manufactured goods supplied on an order without samples complying with such a warrant}'. I adopt what was said b}' Willes, J., in Mod}' v. Gregson, Law Rep. 4 Ex. 49, 53: "The object and use of either inspection of bulk or sample alike are to give information, disclosing directly through the senses what any amount of circumlocution might fail to express. It seems difficult, therefore, to ascribe any greater effect to a sample in excluding implication than would be ascribed to express words in the contract giving, as far as words could give, the same amount of infor- mation ; and as to such words, the doctrine that an express provision excludes imiilication, does not affect cases in which the express pro- vision appears on the true construction of the contract to have been superadded for the benefit of the buyer." There is no doubt that the implied warranty will be excluded as re- gards any defects which the sample would disclose to a buyer of ordinary diligence and experience. The inquiry, therefore, arises whether the defendants by " due diligence in the use of all ordinary and usual means " would have detected in the patterns the defects of which they now complain. I think not. What is "due diligence" must depend upon the circumstances. Having regard to the order given in the previous year, and the mode in which that order was fulfilled, I thinis S2CT. II.] BARNARD V. KELLOGG. 711 that when the defendants made the contract there was nothing which could reasonabl}- lead them to anticipate that the patterns represented goods possessing the defect which was, in fact, inherent in them. And I am satisfied upon the evidence that the defendants, who undoubtedly did not discern the defect, did not fail to do so from neglectino- to use the means usually adopted by buyers under like circumstances. I have therefore arrived at the conclusion that the learned judge who tried the case took a correct view of the facts on this part of it, and that his decision was properly affirmed by the Court of Appeal. As regards the other complaint, viz., that the goods were not woaded according to contract, I have nothing to add to wliat has been said by the noble Earl on the woolsack. It depended entirely upon disputed questions of fact, and I am not satisfied that they have been errone- ously determined. I therefore concur in the motion that has been made. Order appealed from affirmed; and appeal dismissed with costs} BARNARD v. KELLOGG. United States Supreme Court, December, 1870. [Reported in 10 Wallace, 383.] Error to the Circuit Court for the District of Connecticut, the case being this : — In the summer of 1864, Barnard, a commission merchant residing in Boston, Massachusetts, placed a lot of foreign wool, received from a shipper in Buenos Ayres, and on which he had made advances, in the hands of Bond & Co., wool brokers in Boston, to sell, with instructions not to sell unless the purchaser came to Boston and examined the wool for himself These brokers sent to E. N. Kellogg & Co., merchants and dealers in wool, in Hartford, Connecticut, at their request, samples of the different lots of wool, and communicated the prices at which each lot could be obtained. Kellogg & Co., in reply, offered to take the wool, all round, at fifty cents a pound, if equal to the samples furnished, and Bond & Co., for their principal, on Saturday, the Gth day of August, by letter and telegram, accepted this offer, provided Kellogg & Co. examined the wool on tlie succeeding Monday and reported on that da}- whether or not they would take it. Kellogg & Co. acceded to this con- dition, and the senior member of the firm repaired to Boston on the day named and examined four bales in the broker's office as fully as he de- sired, and was offered an opportunity to examine all the bales, and have them opened for his inspection. This he declined to do, and concluded the purchase on the joint account of all the plaintiffs. Some months * The Earl of Selborne and Lord Macnaghten deh'vered concurring opinions. 712 BARNARD V. KELLOGG. [cHAP. "V. after this, on opening tlie bales it was ascertained that a portion of them were falsel}' and deceitfully packed, hy placing in the interior rotten and damaged wool and tags, which were concealed b}' 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 was, however, communicated to him, and he was asked to indemnify the purchaser against the loss he sustained in consequence of it. This he declined to do, and the purchaser brought this suit. The declaration counted : — 1st. Upon a sale by sample. 2d. Upon a promise, express or implied, that the bales should not be falselj' packed. 3d. Upon a promise, express or implied, that the wool inside of the bales should not difl"er from the samples by reason of false packing. The court below, trying the cause without the intervention of a jur}-, held that there was no express warrant}' that the bales not examined should correspond to those exhibited at the brokers' store, and that the law under the circumstances could not imply anj'. But the court found as matters of fact, that 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 ver^' inconvenient, attended with great labor and dela}-, and for these reasons was impracticable ; and that by the custom of merchants and dealers in foreign wool in bales in Boston and New York, the principal markets of this country where such wool is sold, there is an implied warrant}' of the seller to the purchaser that the same is not falsel}' 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. 3Ir. N. Shipman, in support of it. Mr. Charles E. Perkins., contra. Mr. Justice Davis delivered the opinion of the court. No principle of the common law has been better established, or more often affirmed, both in this country and in England, than that in sales of personal propert}-, in the absence of express warrant}-, where the buyer has an opportunity to inspect the commodit}*, and the seller is guilty of no fraud, and is neither the manufacturer nor grower of the article he sells, the maxim of caveat emptor applies. Such a rule, re- (juiring the purchaser to 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 qualit}' or condition of the goods he desires to buy corresponds with the sample exhibited. If he is satisfied without a warrant}-, and can inspect and declines to do it, he takes upon himself the risk that the article is mer- chantable. And he cannot relieve himself and charge the seller on the ground that the examination will occupy time, and is attended with labor and inconvenience. If it is practicable, no matter how inconve- SECT. II.] BAKNAKD V. KELLOGG. 713 nient, the rule applies. One of the main reasons wh}' the rule does not apply in the case of a sale by sample, is because there is no opportunit}- 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 prevails, with one exception (South Carolina), sanction it. Applying this acknowledged rule of law to this case, it is easy to settle the rights of the parties, and to interpret the contract which thcv made. That the wool was not sold by sample clearly appears. And it is equally clear that both sides understood that the buyer, if he bought, was to be his own judge of the quality of the article he purchased. Barnard expressly stipulated, as a condition of sale, that Kellogg should examine the wool, and he did examine it for himself. If Kellogg in- tended to rely on the samples as a basis of purchase, why did he go to Boston and inspect the bales at all, after notice that such inspection was necessary before the sale could be completed? His conduct is wholly inconsistent with the theory of 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 cannot 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 believe that the wool was falsely packed. The sale on his part was intended to be upon the usual examination of the article, and the proceeding 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, be- cause if inconvenient it was still practicable, and that is all, as we have seen, that the law requires. The case of Salisbury y. Stainer, reported in 19th Wendell, page 158, is similar in 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 purchase)- wished to treat the sale as a sale bj' sample ; but the court said to him, " You were told to examine for j'oursclf, and having opened one bale, and at libertj' to open all, and omitting to do it, you cannot be permitted to allege that 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 in the interests of trade and commerce, that the seller in this instance was not answerable over for an}' latent defects in the bales of wool. But the learned court below having found that by the custom of deal- ers in wool in New York and Boston there is a warranty b}' the seller implied from the fact of sale, that the wool is not falsel}" packed, and having held Barnard bound by it, tlie inquiry arises whether such a custom can be admitted to control the general rules of law in relation to the sale of personal property. It is to be regretted that the decisions of the courts, defining what 714 BARNARD V. KELLOGG. [CHAP. V. local usages may or ma}- not do, have not been uniform. In some judicial tribunals there has been a disposition to narrow the limits of this species of evidence, in others to extend them, and on this account mainly the conflict in decision arises. But if it is hard to reconcile all the cases, it may be safely said they do not differ so much in principle, as in the application of the rules of law. The proper office of a custom or usage in trade is to ascertain and explain the meaning and intention of the parties to a contract, whether written or in parol, which could not be done without the aid of this extrinsic evidence. It does not go be^'ond this, and is used as a mode of interpretation on the theory that the parties knew of its existence, and contracted with reference to it. It is often employed to explain words or phrases in a contract of doubt- ful signification, or which may be understood in different senses, accord- ing to the subject-matter to which the}' are applied. But if it be inconsistent with the contract, or expressl}- or by necessary implication contradicts it, it cannot be received in evidence to affect it. Usage, says Lord Lyndhurst, " may be admissible to explain what is doubtful ; it is never admissible to contradict what is plain." And it is well settled that usage cannot be allowed to subvert the settled rules of law. AVhat- ever tends to unsettle the law, and make it different in the different communities into which the state is divided, leads to mischievous con- sequences, embarrasses trade, and is against public policy. If, there- fore, on a given state of facts, the rights and liabilities of the parties to a contract are fixed bj' the general principles of the common law, they cannot be changed by any local custom of the place where the contract was made. In this case the common law did not, on the admitted facts, imply a warranty of the good quality of the wool, and no custom in the sale of this article can be admitted to impU- one. A contrary doctrine, says the court, in Thompson v. Ashton, 14 Johnson, 317, "would be extremely pernicious in its consequences, and render vague and uncer- tain all the rules of law on the sales of chattels." In Massachusetts, where this contract was made, the more recent de- cisions on the subject are against the validity of the custom set up in this case. In Dickinson v. Gay, 7 Allen, 29, which was a sale of cases of satinets made by samples, there were in both the samples and the goods a latent defect not discoverable by inspection, nor until the goods were printed, so that they were unmerchantable. It was contended that l)y custom there was in such a case a warranty implied from the sale that the goods were merchantable. But the court, after a full review of all the authorities, decided that the custom that a warranty was implied, when b\- law it was not implied, was contrary to the rule of the common law on the subject, and therefore void. If anything, the case of Dodd V. Farlow, 11 Allen, 426, is more conclusive on the point. There fort}' bales of goat-skins were sold by a broker, who put into the memoran- dum of sale, without authority, the words "to be of merchantable quality and in good order." It was contended that by custom, in all sales of such skins, there was SECT. II.] BAKNARD V. KELLOGG. 715 an implied warranty that they were of merchantable quality, and, therefore, the broker was authorized to insert the words, but the court held the custom itself invalid. They saj-, " It contravenes the prin- ciple, which has been sanctioned and adopted by this court, upon full and deliberate consideration, that no usage will be held legal or binding on parties, which not onl}- relates to and regulates a particular course or mode of dealing, but which also engrafts on a contract of sale a stipula- tion or obligation which is inconsistent with the rule of the common law on the subject." It is clear, therefore, that in Massachusetts, where the wool was sold and the seller lived, the usage in question would not have been sanctioned. In New York there are some cases which would seem to have adopted a contrary view, but the earlier and later cases agree with the Massa- chusetts decisions. The question in Frith v. Barker, 2 Johnson, 327, was, whether a custom was valid that freight must be paid on goods lost by peril of the sea, and Chief Justice Kent, in deciding that the custom was invalid, says: "Though usage is often resorted to for explanation of commercial instruments, it never is, or ought to be, received to con- tradict a settled rule of commercial law." In Woodruff v. Merchants' Bank, 25 Wendell, G73, a usage in the city of New York, that days of grace were not allowed on a certain description of commercial paper, was held to be illegal. Nelson, Chief Justice, on giving the opinion of that court, says: "The effect of the proof of usage in this case, if sanctioned, would be to overturn the whole law on the subject of bills of exchange in the city of New York ; " and adds, " if the usage prevails there, as testified to, it cannot be allowed to control the settled and acknowledged law of the State in respect to this description of paper." And, in Beirne v. Dord, 1 Selden, 95, the evidence of a custom that in the sale of blankets in bales, where there was no express warranty, the seller impliedl}- warranted them all equal to a sample shown, was held inadmissible, because contrary to the settled rule of law on the subject of chattels. But the latest authority in that State on the subject is the case of Simmons v. Law, 3 Keys, 219. That was an action to recover the value of a quantity of gold-dust shipped by Simmons from San Francisco to New York on Law's line of steamers, which was not de- livered. An attempt was made to limit the liability of the common carrier beyond the terms of the contract in the bill of lading bj' proof of the usage of the trade, which was well known to the shipper, but the evidence was rejected. The court, in commenting on the question, sa}' : " A clear, certain, and distinct contract is not subject to modification by proof of usage. Such a contract disposes of all customs by its own terms, and by its terms alone is the conduct of the parties to be regu- lated, and their liability to l)e determined." In Pennsylvania this subject has been much discussed, and not always with the same result. At an early day the Supreme Court of the State allowed evidence of usage, that in the city of Philadelphia the seller of cotton warranted against latent defects, though there were neither fiaiul 716 BARNARD V. KELLOGG. [CHAP. V. on bis part or actual warrant}-. Chief Justice Gibson, at the time, dis- sented from the doctrine, and the same court, in later cases, has disap- proved of it, and now hold that a usage, to be admissible, " .nust not conflict with the settled rules of law, nor go to defeat the essential terms of the contract." It would unnecessarily lengthen this opinion to review any further the American authorities on this subject. It is enough to say, as a general thing, tliat the}' are in harmony with the decisions already noticed. See the American note to Wigglesworth v. Dallison, 1 Smith's Leading Cases, where the cases are collected and distinctions noticed. The necessit}^ for discussing this rule of evidence has often occurred in the highest courts of England on account of the great extent and variety of local usages which prevail in that country, but it would serve no useful purpose to review the cases. They are collected in the very accurate English note to Wigglesworth v. Dallison, and are not different in principle from the general current of the American cases. If any of the cases are in apparent conflict, it is not on account of any difference in opinion as to the rules of law which are applicable. These rules, says Chief Justice Wilde, in Spartali v. Benecke, 10 Common Bench, 222, " are well settled, and the difficulty that has arisen respecting them has been in their application to the varied cir- cumstances of the numerous cases in which the discussion of them has been involved." But this difficulty does not exist in applying these rules to the circumstances of this case. It is apparent that the usage in question was inconsistent with the contract which the parties chose to make for themselves, and contrary to the wise rule of law governing the sales of personal propert}'. It introduced a new element into their contract, and added to it a warranty, which the law did not raise, nor the parties intend it to contain. Tlie parties negotiated on the basis of caveat emptor, and contracted accordingly. This they had the right to do, and by the terms of the contract the law placed on the buyer the risk of the purchase, and relieved the seller from liability for latent de- fects. But this usage of trade steps in and seeks to change the position of the parties, and to impose on the seller a burden which the law said, on making his contract, he should not carry. By this means a new contract is made for the parties, and their rights and liabilities under the law essentially altered. This, as we have seen, cannot be done. If the doctrine of caveat em'ptor can be changed b}' a special usage of trade, in the manner proposed by the custom of dealers of wool in Boston, it is eas}' to see it can be changed in other particulars, and in this way the whole doctrine frittered away. It is proper to add, in concluding this opinion, that the conduct of the parties shows clearly tliat they did not know of this custom, and could not therefore have dealt with reference to it. Judgment reversed, and the cause remanded with directions to award a Venire de novo. Bradley and Strong, JJ., dissented. SECT. II.] KELLOGG BRIDGE CO. V. HAMILTON. 717 KELLOGG BRIDGE COMPANY v. HAMILTON. United States Supreme Court, October 31, 1883 -January 14, 1884. [Reported in 110 United States, 108.] The Kellogg Bridge Company, the defendant below, undertook to construct, for the Lake Shore and Southern Michigan Railroad Company an iron bridge across Maumee River at Toledo, Ohio. After doing a por- tion of the work it entered into a written contract with the defendant in error, for the completion of the bi-idge under its directions, containing, among others, these stipulations : — "That the said party of the first part [Hamilton] hereby agrees to furnish and prepare all the necessary false work and erect the iron bridge now being constructed by the said party of the second part [the Kellogg Bridge Company] for the Lake Shore and Michigan Southern Railroad Company at Toledo, Ohio, over tlie Maumee River, receiving said bridge material as it arrives on the cars at the site of said bridge, and erecting the same in the best manner, according to the design of said bridge and the directions of said second party from time to time, commencing the erection of said work when required to do so by said second party, and proceeding with the same with a force suffi- cient to complete the entire work on or before the first day of March next ; the said first party also agrees to assume and pay for all work done and materials furnished up to the time of executing this contract, including piling and piles, timlier, and other materials and labor done on the same, but not including bolts and washers which have been fur- nished by the party of the second part, but to return said bolts and washers to the said second party, or pay for the same on completion of said bridge. "And the said first party, in consideration of the payments herein- after mentioned to be made by said second party, agrees to perform all the stipulations of this agreement in a thorough and workmanlike manner and to the satisfaction of the second party. "And if at any time the said second party is not satisfied with the manner of performing the work herein described, or the rapidity with which it is being done, tlie second party shall have full power and lib- erty to put on such force as may be necessary to complete the work within the time named, and provide such tools or materials for false work as may be necessary, and charge the cost of the same to the said first party, who agrees to pay tlicrefor." In consideration of the faithful performance of these stipulations, Hamilton was to receive from the Bridge Company $900 on the com- pletion of the first span, a like sum on tlie completion of the second span, $800 on the completion of the third span, and $1,403 on the com- 718 KELLOGG BRIDGE CO. V. HAMILTON. [CHAr. V. pletion of the draw and the enth'e work ; such payments to be made only on the acceptance of each part of the work by the chief engineer of the Lake Shore and Michigan Southern Raih-oad Compan3^ Tiie bridge which Hamilton undertook to erect consisted of three independent fixed spans, each to be one hundred and seventy-five feet six inches in length, suspended between and resting at each end of the span upon stone piers, which had been prepared to receive the same, and one draw span of one hundred and eighty-five feet in length, rest- ing upon a pier in the centre, also then prepared. In erecting the sev- eral spans it was necessary to build and use what the contract described as " false work," which consisted of piles driven in the river between the piers upon which the spans were to rest, and upon which was placed a platform. As indicated in the written contract, the Bridge Company had pre- viously constructed a part of this false work between the first and second spans, the cost of which Hamilton paid, as by the contract he agreed to do. Assuming this work to be sufficient for the purposes for which it was designed, Hamilton proceeded to complete the erection of the bridge according to the plans furnished him. There was evidence before the jury tending to establish the following facts : — A part of the false work or scaffolding put up by the company sank under the weight of the first span, and was replaced by Hamilton. When the second fixed span was about two thirds completed, the ice, which before that had formed in the river, broke up in consequence of a flood, carrying away the false work under that span, and causing the whole of the iron material then in place on the span, or on the span ready to be put in place, to fall in the river, which at that place was about sixteen feet deep. If the piles driven by the Bridge Company had been driven more firmly into the bed of the river, they would have withstood the force of the ice and flood. In consequence of the insufficiency of the false work done by that compan}-, Hamilton was delayed in the comple- tion of the bridge and subjected to increased expense. Tiie bridge being completed, Hamilton brought suit in the State court to recover the contract price of the bridge, extra work claimed to have been done on it, and damages sustained b}^ reason of the insuffi- ciency of the false work constructed by the Bridge Companj', — in all 83,G93.78. The cause was removed to the Circuit Court of the United States, where the Bridge Company answered, setting up a counter- claim for S6,619.70. Trial was had with verdict and judgment for plaintiff for $3,039.89. The defendant below brought a writ of error to reverse that judgment. Mr. Richard Waite and il/r. E. T. Waite, for plaintiff in error. Mr. John C. Lee, for defendant in error. Mr. Justice Harlax delivered the opinion of the court. After reciting the foregoing facts, he continued : It is insisted by the defendant in error that the value of the matter really in dispute here is SECT. II.] KELLOGG BRIDGE CO. V. HAMILTON. 719 less than the amount requisite to give this court jurisdiction. Upon this ground a motion to dismiss was heretofore made, and was denied. To that ruling we adhere. Upon the pleadings it is apparent that the defendant asserts its right to judgment for 66,619.70, after crediting plaintiff, not only with the sum specified in the contract, but with ever}' other sum to which he is entitled in the accounting. This is conclusive as to our jurisdiction upon this writ of error. It was not claimed on the trial, nor is it contended here, that the company made any statement or representation as to the nature or character of the false work it did, and which, b}' the contract, Hamilton agreed to assume and pay for. But there was evidence tending to show that the insufiiciency of that false work was unknown to Hamilton at the time the contract was made ; was not apparent upon any exami- nation he then made, or could have made ; and was not discovered, indeed, could not have been discovered, until, during the progress of the erection of the bridge, the false work was practically tested. The court, among other things, instructed the jury, at the request of plaintiff, and over the objections of the defendant, that by the contract — looking at all the circumstances attending its execution and giving to its terms a fair and reasonable interpretation — there was an implied warrant}' upon the part of the company that the false work it did, and which plaintiff agreed to assume and pay for, was suitable and proper for the purposes for which the Bridge Company knew it was to be used. This instruction was accompanied by the observation that if the evi- dence showed " that the particular work which was said to be defective was such tliat the plaintiff could not by examination ascertain its defects — for if tliey were apparent by mere examination of the false work it was the duty of the plaintiff to make that good — he had the right to rely upon the implied warranty ; that is, if the defects were such that they could not be, by ordinary observation and care on behalf of the plaintiff, ascertained and found out." That instruction presents the only ques- tion we deem it necessary to determine. Although there are several assignments of error, they depend, as counsel for plaintiff in error prop- erly concede, upon the inquiry whether the court erred in ruling that by the terms of the contract there was an implied warranty that the false work constructed by the Bridge Company was suitable and proper for the purposes for which it was to be used by Hamilton. The argument in behalf of plaintiff in error proceeds upon the ground that tliere was a simple transfer by the company of its ownership of the work and materials as they existed at the time of the contract ; that Hamilton took the false work for what it was, and just as it stood ; consequently, that tlie rule of cai-eat emptor applies with full force. The position of counsel for Hamilton is tliat, as in cases of sales of articles by those manufacturing or making them, there was an implied warranty by the Bridge Company tliat the work sold or transferred to Hamilton was reasonabl}' fit for the purposes for which it was purchased. 720 KELLOGG BrjDGE CO. V. HAMILTON. [CIIAP. V. TV ^ases in which the general rule of caveat em2)tor applies are indi- cated ia Barnartl v. Kellogg, 10 Wall. 383, 388, where, speaking by Mr. -Justice Davis, the court observed, that " no principle of the com- mon law has been better established, or more often affirmed, both in this country and in England, than that in sales of personal property, in the absence of express warrant}', where the bu^-er has an opportunity to inspect the commodity, and the seller is guilty of no fraud, and is neither tlie manufacturer nor grower of the article he sells, the maxim o^ caveat emptor applies." An examination of the ground upon which some of the cases have placed the general rule, as well as the reasons against its application, under particular circumstances, to sales of articles by those who have manufactured them, will aid us in determining how far the doctrines of those cases should control the one before us. The counsel for the Bridge Company relies upon Parkinson v. Lee, 2 East, 314, as illustrating the rule applicable in ordinary sales of mer- chandise. That case arose out of a sale of five pockets of hops, sam- ples of which were taken from each pocket and exhibited at the time of sale. The question was whether, under the circumstances of that case, — tVere being no express warranty and no fraud b}' the seller, — there was an implied warranty that the commodity was merchantable. It was resolved in the negative, upon the ground that it was the fault of the ' uyer that he did not insist on a warranty ; the commodity' was one which might or might not have a latent defect, a fact well known in the trade ; and since a sample was fairly taken from the bulk, and the buyer must have known, as a dealer in the commodit}', that it was subject to the latent defect afterwards appearing, he was held to have exercised his own judgment and bought at his own risk. But of that case, it was observed b}- Chief Justice Tindal, in Shepherd v. Pybus, 3 Man. & Gr. 868, that two of the judges participating in its decision laid "great stress upon the fact that the seller was not the grower of the hops, and that the purchaser, by the inspection of the hops, had as full an opportunit}' of judgment of the quality of the hops as the seller him- self." There was, consequently, nothing in the circumstances to justif}' the buyer in relying on the judgment of the seller as to the qualit}' of the commodity. It is also worth}' of remark, that in Randall v. New- son, 2 Q. B. 102, it was said of Parkinson v. Lee, that " either it does not determine the extent of the seller's liability on the contract, or it has been overruled." In Brown v. Edgington, 2 Man. & Gr. 279, the plaintiff sought to recover damages resulting from the insufficiency of a rope furnished by the defendant upon plaintiff's order, to be used, as defendant knew, in raising pipes of wine from a cellar. The defendant did not himself manufacture the rope, but procured another to do so, in order that he, defendant, might furnish it in compliance with the plaintiff's request. Tindal, C. J., said : " It appears to me to be a distinction well founded, both in reason and on authorit}-, that if a party purchases an article SECT. II.] KELLOGG BRIDGE CO. V. HA3IILT0N. 721 upon his own judgment, he cannot afterwards hold the vendor respon- sible on the ground that the article turns out to be unfit for the purpose for which it was required ; but if he relies upon the judgment of the seller, and informs him of the use to which the article is to be applied, it seems to me the transaction carries with it an implied warrant}' that the thing furnished shall be fit and proper for the purpose for which it was designed." In Shepherd v. Pybus, already' referred to, the question was whether, upon the sale of a barge by the builder, there was a warranty of fitness for the purpose for which it was known by the builder to have been purchased. It was held that the law implied such a warranty. The ground of the decision was that the purchaser had no opportunit}- of inspecting the barge during its construction, having seen it only after completion ; that the defects afterwards discovered were not apparent upon inspection, and could on]y be detected upon trial. In Jones v. Just, L. R. 3 Q. B. 197, upon an extended review of the authorities, the court classified the adjudged cases bearing upon the subject of implied warranty, and said that " it must be taken as estab- lished that on the sale of goods by a manufacturer or dealer, to be applied to a particular purpose, it is a term in the contract that they shall reasonably answer that purpose, and that on the sale of an article by a manufacturer to a vendee who has not had the opportunity of in- specting it during the manufacture, that it shall be reasonably fit for use or shall be merchantable, as the case ma}- be." Other cases might be cited, but these are sufficient to show the general current of decision in the English courts. The decisions in the American courts do not indicate an}' substan- tial difference of doctrine. A leading case upon the subject, where the authorities were carefully examined and distinguished, is Hoe v. San- born, 21 N. Y. 552. The decision there was that " where one sells an article of his own manufacture which has a defect produced by the manufacturing process itself, the seller must be presumed to have had knowledge of such defect, and must be holdcn, therefore, upon the most obvious principles of equity and justice — unless he informs the purchaser of the defect — to indemnify him against it." In Cunningham ?;. Hall, 4 Allen, 268, the cases of Hoe v. Sanborn, and Shepherd v. Pybus, and Brown i\ Edgington, siqva, are cited with approval. In Rodgers v. Niles, 11 Ohio St. 48, 53, the Supreme Court of Ohio recognizes among the exceptions to the general rule, cases " where it is evident that the purchaser did not rely on his own judgment of the quality of the article purchased, the circumstances showing that no examination was possible on his part, or the contract being such as to show that the obligation and responsibility of ascer- taining and judging of the quality was thrown upon the vendor, as where he agrees to furnish an article for a particular purpose or use." So in Leopold v. Vankirk, 27 "Wis. 152 : " The general rule of law with respect to implied warranties is well settled that when the manufacture! 722 KELLOGG BRIDGE CO. V. HAMILTON. [ciLVP. V. of an article sells it for a particular purpose, the purchaser making known to hiui at the time the purpose for which he buys it, the seller thereby warrants it fit and proper for such purpose and free from latent defects." So also in Brenton v. Davis, 8 Blackf. 317, 318 : " We consider the law to be settled that if a manufacturer of an article sells it at a fair market price, knowing tlie purchaser designs to apply it to a particular purpose, he impliedly warrants it to be fit for that purpose ; and that if, owing to some defect in the article not visible to the purchaser, it is unfit for the purpose for which it is sold and bought, the seller is liable on his implied warranty," 2 Story on Contracts, § 1077, 5th ed., by Bigelow ; 1 Chitty on Con- tracts, 11th American ed., 631, 632, note m ; Addison on Contracts, ch. 7, § 1, p. 212. The authorities to which we have referred, although differing in the form of stating the qualifications and limitations of the general rule, yet indicate with reasonable certaint}' the substantial grounds upon which the doctrine of implied warranty has been made to rest. According to the principles of decided cases, and upon clear grounds of justice, the fundamental inquiry must always be whether, under the circumstances , of the particular case, the buyer had the right to rely and necessaril}'' relied on the judgment of tlie seller, and not upon his own. In ordinary' sales the buyer has an opportunity of inspecting the article sold ; and the seller not being the maker, and therefore having no special or technical knowledge of the mode in which it was made, the parties stand upon grounds of substantial equality. If there be, in fact, in the particular case anj- inequality, it is such that the law cannot or ought not to attempt to provide against ; consequently, the bu3'er in such cases — the seller giving no express warrant}' and making no representations tending to mislead — is holden to have purchased entirely on his own judgment. But when the seller is the maker or manufacturer of the thing sold, the fair presumption is that he understood the process of its manufacture, and was cognizant of any latent defect caused by such process, and against which reasonable diligence might have guarded. This presumption is justified, in part, by the fact that the manufacturer or maker b}' his occupation holds himself out as competent to make articles reasonably adapted to the purposes for which such or similar articles are designed. When, therefore, the bu3-er has no opportunity to inspect the article, or when, from the situation, inspection is imprac- ticable or useless, it is unreasonable to suppose that he bought on his own judgment, or that he did not rely on the judgment of the seller as to latent defects of which the latter, if he used due care, must have been informed during the process of manufacture. If the buyer relied, and under the circumstances had reason to relj', on the judgment of the seller, who was the manufacturer or maker of the article, the law im- plies a warranty that it is reasonably fit for the use for which it was designed, the seller at the time being informed of the purpose to devote it to that use. SECT. II.] KELLOGG BRIDGE CO. V. HAMILTON. 723 Whether these principles control, or to what extent they are applica- ble, in the present case, we proceed to inquire. Although the plaintiff in error is not a manufacturer in the common acceptation of that word, it made or constructed the false work which it sold to Hamilton. The transaction, if not technically a sale, created between the parties the relation of vendor and vendee. The business of the compan}' was the construction of bridges. B3' its occupation, apart from its contract with the railroad company, it held itself out as reasonably competent to do work of that character. Having partially executed its contract with the railroad companj', it made an arrange- ment with Hamilton, whereby the latter undertook, among other things, to prepare all necessary false work, and, by a day named, and in the best manner, to erect the bridge then being constructed by the Bridge Compan}', — Hamilton to assume and pay for such work and materials as that compan}' had up to that time done and furnished. Manifestl}', it was contemplated by the parties that Hamilton should commence where the corapau}' left off. It certainlj' was not expected that he should incur the expense of removing the false work put up by the corn- pan}' and commence anew. On the contrary, he agreed to assume and pay for, and therefore it was expected by the compan}' that he should use, such false work as it had previously prepared. It is unreasonable to suppose that he would buy that which he did not intend to use, or that the company would require him to assume and pay for that which it did not expect him to use, or which was unfit for use. It is sug- gested that, as Hamilton undertook to erect the bridge in a thorough and workmanlike manner, he was not bound to use the false work put up b}- the company, and that if he used it in execution of his contract, he did so at his own risk. This is only one mode of saying that, in the absence of an express warranty or fraud upon the part of the compan}', the law will not, under an}' circumstances, imply a warranty as to the qualit}' or sufficiency of this false work. But the answer to this argu- ment is that no question was raised as to its sufficicnc}' ; that, while Hamilton must be charged with knowledge of all defects apparent or discernible upon inspection, he could not justly be charged with knowl- edge of latent defects which no inspection or examination, at or before the sale, could possibl}- have disclosed. The jiuy have, in effect, found the false work to have been insufficient, in that the piles were not driven deep enough ; that had they been properly driven, the work would have answered the purposes for which Hamilton purchased it; and that he could not have ascertained such defects in advance of an actual test made during the erection of the bridge. It must be assumed that the company know, at the time of sale, that Hamilton could not, b}' inspection, have discovered tlie latent defects which were subsequentl_y disclosed. And if it Ijc also assumed, as it fairly may be, that Hamil- ton, being himself a bridge builder, knew that there might be latent defects in this false work, caused by the mode of its construction, and bej-ond his power by mere inspection to ascertain, it must not be over- 724 MUIiCHIE V. CORNELL. [CIIAP. V. looked that he also knew that the couipan}', bj' its agents or servants, were or should have been informed as to the mode in which the work had been done. That he did not exact an express warrant}- against latent defects not discoverable by inspection, constitutes, under the cir- cumstances, no reason wh}' a warranty may not be implied against such defects as were caused by the mode in which this false work was con- structed. In the cases of sales by manufacturers of their own articles for particular purposes, communicated to them at the time, the argu- ment was uniformly pressed that, as the buyer could have required an express warranty, none should be implied. But, plainly, such an argument impeaches the whole doctnne of implied warranty, for there can be no case of a sale of personal property in which the buyer may not, if he chooses, insist on an express warrant}' against latent defects. All the facts are present which, upon any view of the adjudged cases, must be held essential in an implied warranty. The transaction was, in effect, a sale of this false work, constructed by a company whose business it was to do such work, to be used in the same way the maker intended to use it, and the latent defects in which, as the maker knew, the buyer could not, by any inspection or examination at the time, dis- cover ; the buyer did not, because in the nature of things he could not, rely on his own judgment ; and, in view of the circumstances of the case, and the relations of the parties, he must be deemed to have relied on the judgment of the company, which alone of the parties to the con- tract had or could have knowledge of the manner in which the work had been done. The law, therefore, implies a warranty that this false work was reasonabl}' suitable for such use as was contemplated by both parties. It was constructed for a particular purpose, and was sold to accomplish that purpose ; and it is intrinsically just that the company, which held itself out as possessing the requisite skill to do work of that kind, and therefore as having special knowledge of its own workman- ship, should be held to indemnif}^ its vendee against latent defects, arising from the mode of construction, and which the latter, as the company well knew, could not, by any inspection, discover for himself. For the reasons stated, we are of opinion that the court did not err in the law of the case, and the judgment must be Affirmed. MURCHIE V. CORNELL. Supreme Judicial Court of Massachusetts, October 28 — November 25, 1891. [Reported in 155 Mass. 60.] Contract, for a cargo of ice sold by the plaintiffs to the defendants. At the trial in the Superior Court, before Dunbar, J., there was evi- dence that Pardon Cornell, as representing a firm composed of the SECT. II.] MUECHIE V. COENELL. 725 other defendant and himself which dealt in ice, went to Calais, Maine, and had several conversations with William A. Murchie, one of the plaintiffs, wlio formed a firm also dealing in ice, in relation to the pur- chase of a cargo of ice. The plaintiffs' evidence tended to show that the ice which the plain- tiffs were proposing to sell to the defendants was in Pembroive, a town upon the coast of Maine, about eighteen miles distant from Calais, with which the only communication was by stage-coach ; that Murchie suggested to Cornell that he should go to Pembroke and see the ice ; that at the time of the first conversation between them in regard to ice the plaintiflfs did not own the ice, but proposed to buy it and ship it to the defendants, but before the negotiations were completed they had purchased the ice ; that there was no express warranty of the ice ; and that the ice on its arrival was sound and merchantable. The defendants' evidence tended to show that Murchie proposed to Cornell to sell him a cargo of ice to be shipped from Pembroke ; that the negotiations were not completed at Calais, and Cornell left there for Bangor and New Bedford ; that the contract for the purchase of the ice was completed by telegrams which passed between Calais and Bangor, and finally between Calais and New Bedford ; that by the terms of the contract the plaintiffs were to ship a cargo of ice, of three hundred and sixty tons, from Pembroke, Maine, by vessel to New Bedford, at a certain price per ton ; and that the ice on its arrival was unsound and unmerchantable. The plaintiffs introduced evidence tending to show that the first complaint they had from the defendants as to the quality or condition of the ice, was a telegram from Cornell : " Schooner arrived, — short- age needs adjusting, — come at once ; " and that the defendants never notified them of any fault with the ice excepting as to the quantity until after the bringing of this action, and no complaint was made by the defendants to tliem as to the quality or condition of the ice. The defendants, having introduced evidence tending to show that Cornell went to the office of a notary pu})lic the day the discharging of the ice was completed, and there signed and made oath to a statement in writing, which was duly recorded by the notary in his book of pro- tests, thereupon offered this written statement for the purpose of re- butting any claim on the part of tlie plaintiffs that the defendants had no fault to find with the quality and condition of the ice prior to the bringing of the action, and of rebutting any argument which might be made therefrom that there was no fault to be found with the quality or the condition of the ice, and not as evidence of the contents of such written instrument. The judge excluded the evidence ofl^ered, and the defendants excepted. The defendants asked the judge to rule as follows ; " In a contract for the sale of ice at wholesale by a dealer in the article to one to be sold again, where there is no opportunity for inspection of the ice, and no express warranty is made, there is an implied warranty that the ice sold is merchantable and salable as ice for ordinary retail use." 726 MUKCIIIE V. CORNELL. [CHAP. V. The judge declined to give the ruling aslced for, but instructed the jury in relation tliereto as follows : " There is no implied warranty of the quality of goods, — by implied warranty I mean a warranty which arises out of the sale itself, nothing being said as to quality, — unless the kind or species of article is such that an affirmation is neces- sarily implied in the making of the sale of that article, that it is of a particular quality. In ordinary sales, in the sales of ordinary articles, such an implied warranty does not arise ; and speaking strictly of quality in this case, there is no implied warranty. What is quality and what is condition in the case of ice is a matter perhaps very diffi- cult to determine, when there is no question of the purity of the water contained in the ice. If we had here before us a question of tlie purity of the water of which the ice had been frozen, you might say without any qualification it was a question of quality. Here the quality relied upon depends largely upon the condition of the ice. As it is a matter of common knowledge that ice is cut in cakes, and that it is sold and handled and delivered in cakes, at wholesale at least, and as by this contract all parties contemplated the ice was to be shipped on board a schooner and sent by sea to New Bedford, there to be discharged and stacked or housed, there must be an implied affirmation that the ice was of such a kind that it could be so shipped, transported, and discharged ; that is as far as there can be an implied warranty in this case, if that can be said to be an implied warranty." The jury returned a verdict for the plaintiffs; and the defendants alleged exceptions. H. M. Knoidton, for the defendants. W. Clifford, for the plaintiffs. Holmes. J. 1. The plaintiffs agreed to sell, and the defendants agreed to buy, a cargo of ice of three hundred and sixty tons, to be shipped from Pembroke, Maine. From some of the evidence it would seem that the ice was not identified by the contract, but was to be sup- plied and appropriated to the contract by the plaintiffs, the sellers. From other parts of the testimony it might be inferred that the ice was iden- tified by the contract, but at a time and under circumstances when the defendants had no opportunity to inspect it before shipment. The judge instructed the jury generally that there was an implied affirma- tion that the ice was of such a kind that it could be shipped, trans- ported by sea, and discharged at New Bedford, as contemplated by the contract, and no other implied affirmation or warranty. If the instruc- tion is wrong in either view which the jury might have taken of the facts, the exceptions must be sustained, and it is unnecessary to con- sider whether the implication would be more extensive in the former case than in the latter. In some contracts of the latter kind, when the sale is of specific goods, but the buyer has no chance to inspect them, the name given to the goods in the contract, taken in its commercial sense, may describe all that the purchaser is entitled to demand. So it was held with re- SECT. II.] BOUNCE V. DOW ET AL. 727 gard to "Manila sugar," in Gossler v. Eagle Sugar Refinery, 103 Mass. 331. But in many cases like the present, the inference is warranted that the thing to be furnished must be not only a thing of the name men- tioned in the contract, but something more. How much more may depend upon circumstances, and at times the whole question may be for the jury. If a very vague generic word is used, like " ice," which taken literally may be satisfied by a worthless article, and the contract is a commercial contract, the court properly may instruct the jury that the word means more than its bare definition in the dictionary, and calls for a merchantable article of that name. If that is not furnished the contract is not performed. Warner v. Arctic Ice Co., 74 Maine, 475; Swett v. Shumway, 102 Mass. 365, 369; Whitmore v. South Boston Iron Co., 2 Allen, 52, 58. In a sale of " Manilla hemp," like that of the sugar in Gossler v. Eagle Sugar Refinery, it was held in England that the hemp must be merchantable. Jones v. Just, L. R. 3 Q. B. 197; Gardiner v. Gray, 4 Camp. 144; Howard v. Hoey, 23 Wend. 350, 351 ; Merriam v. Field, 39 Wis. 578 ; Fish v. Roseberry, 22 111. 288, 299 ; Babcock v. Trice, 18 111. 420. See Hight v. Bacon, 126 Mass. 10, 12 ; Hastings V. Lovering, 2 Pick. 214, 220. 2. The plaintiffs put in evidence tending to show that the defend- ants never notified them of any defect in the quality or condition of the ice until after this suit. To meet this the defendants offered a protest signed and sworn to by one of them on the day the ice arrived. This protest was no evidence that the statements contained in it were true, or that the defendants' story was not false. So far as the plain- tiffs' evidence was introduced for the purpose of showing such an acceptance of the ice as to bar the defendants from alleging that it did not satisfy the contract (Morse v. Moore, 83 Maine, 473, and Gay- lord Manuf. Co. V. Allen, 53 N. Y. 515, 519), the protest of course had no bearing. And although it did show that the defendant's story was not an afterthought, it was properly excluded, the plaintiffs, so far as appears, not having taken that specific point. Wallace v. Story, 139 Mass. 115. Exceptions sustained. WILLIAM J. BOUNCE v. BENJAMIN F. DOW et Al. New York Court of Appeals, February 18 — March 21, 1876. [Reported in 64 New York, 411] Appeal from judgment of the General Term of the Supreme Court in the fourth judicial department in favor of plaintiff, entered upon an order denying motion for a new trial and directing judgment upon a verdict. "(Reported below, 6 T. & C. 653.) This action was upon a promissory note made by defendants, to the 728 BOUNCE V. DOW ET AL. [CIIAP. V. order of the plaintiff, pa^'able at four months at the Genesee Valley National Bank. The defence was that the note was given for ten tons of "XX pipe iron," which defendants bought of plaintiff, to be used in making cast- ings for agricultural implements, in the manufacture of which defendants were engaged at Fowlerville, in this State. The iron was shipped to, and received b}' the defendants, and, without making an}- test or exam- ination of it, it was mixed with other varieties of pig-iron and con- verted into such castings. The iron so purchased of plaintiff was so rotten and worthless that the castings made from it were valueless, and the defendants were put to great expense in the effort to use said iron, and to great loss in utter worthlessness of the machinery made therefrom. This loss and expense they set up as a counter-claim to the note. It appeared upon the trial that the plaintiff was a dealer in pig metals, at Elmira, and the defendants were, and had for a number of years been, manufacturers of castings for agricultural implements at Fowlerville. Prior to the 27th of January, 1869, several letters had passed between the parties as to pig-iron of various sorts, in one of which letters defendants ask plaintiff' the price for " XX pipe iron." On the twent3'-eighth of Januarj' plaintiff wrote to defendants a letter, in which he acknowledged the receipt of a letter from them, and told them he could supply them XX pipe through the season, but would not fix any certain price for the same. He said he could sell XX pipe then at forty-two dollars and fifty cents, and would sell all the season that brand at the lowest figure he could. He also gave the time and manner in which he required payment. On the twenty-ninth of Jan- uary defendants wrote to the plaintiff to enter their order for ten tons of XX pipe iron, and send to them at Caledonia as soon as received. On the 12th of Februar}-, 1869, plaintiff shipped to defendants, as directed, ten tons branded and billed as XX pipe, addi'essed to them at Fowlerville. On or about the fifteenth of Februarj', and before the iron was received, defendants sent to plaintiff their note for the amount of the bill. It did not conform entirely to the terms of sale, and plain- tiff returned it to defendants, who corrected the error and returned the same to plaintiff. A few days thereafter the iron was received by defendants. When they came to use the castings made, the}- were found to be brittle and worthless, and, on examination, the XX pipe iron was found to be brittle, rotten, and worthless. Five tons of the XX iron were used before its worthlessness was discovered, and then defendants wrote to plaintiff complaining of the injury done to them b}' reason of the bad qnalit}' of the iron sold to them, refusing to use an}' more of it and offering to return what remained unused. The iron in question was manufactured at a furnace in Pennsylvania, and purchased by plaintiff to be sold by him. He had none on hand when he received defendants' order, but ordered it from the manufactory, received and shipped it as "XX pipe iron." The SECT. II.] BOUNCE V. DOW ET AL. 729 quality of pig iron cannot be ascertained by merely examining it externalh'. There are two tests by which to determine the quality. One is melting it ; the other, breaking the pig so that the internal surface may be examined, and from the appearance of that surface a person acquainted with pig-iron could detei-mine its quality quite accu- rately without using it. The iron sent to defendants was not broken and examined, and the effect of it upon the castings was not ascertained for several weeks, as defendants cast a large quantity before they pre- pared them for use. There was some conflict in the evidence as to whether the iron was, in fact, ' ' XX pipe." Counsel for the defendants asked permission to go to the jur}' upon the questions of the market value of the iron in question ; as to whether the iron was worth an3'thing for the purposes of the defendants' busi- ness, and as to whether there was not a warrant}' on the part of the plaintiff, express or implied, that the iron shipped upon the order of defendants was fit and suitable for use in the manufacturing business of the defendants. The court declined to grant the requests ; to which ruling and decision counsel for the defendants duly excepted. The court directed a verdict for plaintiff for the amount of the note. Exceptions were ordered to be heard at first instance at General Term. J. B. Adams, for the appellants. J. R. Ward, for the respondent. Church, C J. The article ordered was "XX pipe iron," and the same was forwarded and billed as such. This was a warranty of the character of the article within the decision in Hawkins v. Pemberton, 51 N. Y. 198, which modified, to some extent, the earlier decisions of Seixas v. Woods, 2 Caines, 48, and Swett v. Colgate, 20 J. R. 196. The words "pipe iron" referred to the furnace where manufactured, and " XX" to the brand indicating the quality. The plaintiff was not a manufacturer, but a dealer in "pig metals," and was not [jresumed to know the precise quality of every lot of pigs bought and sold by him, bearing that brand, and hence cannot be held to have warranted that the pigs in question were of any certain qualit}'. Hoe v. Sanborn, 21 N. Y. 552. There was no fraud. Both parties supposed, doubtless, that the iron was first quality for the purpose for which it was intended. But it is not enough that the plaintiff knew such purpose. 34 N. Y. 118. The defendant should have exacted a specific warranty, and then both parties would have acted understandingly. If the defendants had ordered XX pipe iron, which was tough and soft, and fit for manufac- turing agricultural implements, and the plaintiff had agreed to deliver iron of that quality, a warranty would have been established, which, probably, within the case of Day v. Pool, 52 N. Y. 416, would have surnved the acceptance of the article. Here both parties acted in good faith. The defendants ordered simply XX pipe iron, supposing that such iron was always tough and .soft. The plaintiff forwarded the iron under the same impression. The iron proved to be brittle and hard, 730 BOUNCE V. DOW ET AL. [CHAP. V. and the question is, which party is to bear the loss? The plaintiff (in the absence of fraud) was only bound by his contract, which was to deliver XX pipe iron, and we are now assuming that such iron was delivered. If so, he was relieved from lial)ility. The only other liabil- ity which can be claimed that he incurred was of an implied warranty tliat the iron was merchantable, and this could not be affirmed unless the contract was executory. 2 Kent's Com. (11th ed.), note c, p. 634. Without inquiring whether such a warranty would be implied under the circumstances of this case, or if it would, what in this case the term " merchantable " would import, it is sufficient to say that the defend- ants, by using a large portion of the iron after an opportunity to examine and ascertain whether it was merchantable, must be deemed to have accepted it, and to have waived the alleged implied warranty within the general rule which, to this extent, is not impaired by Day v. Pool, supra. The omy serious question in the case is, whether the court erred in directing a verdict. There was, as we have seen, an express warranty that the iron was XX pipe iron, and there was some evidence, although slight, that it was not. This point, however, was waived. The coun- sel for the defendants asked to go to the jury upon several questions, but did not include among them the question whether this warranty was broken. 43 N. Y. 85, and cases cited. The ruling in rejecting the letter of the 28th March, 1868, to the defendants' predecessors, with this point out of the case, was not erro- neous. That letter was not a warranty that the iron in question was tough and soft, but might have been admissible as a declaration of the party, if the iron had not been XX pipe iron. The same brand of iron is not always of the same quality, and the statement, the year before, by the plaintiff that he was receiving iron of that brand, which was tough and soft, would not inure as a warranty that all the iron which he might thereafter sell of that brand was of that quality. We think that the judgment must be affirmed. All concur ; Andrews, J., concurring in result. Judgment affirmed} 1 See further the following recent decisions on the implication of warranties: Seitz v. Brewers' Kefrigerating Co., 141 U. S. 510 ; Grand Avenue Hotel Co. v. Wharton, 79 Fed. Rep. 43 (C. C. A.); Carpenter v. Gage, 107 Fed. Rep. 886 (C. C. A.); Cleveland Oil Co. v. Buchanan, 120 Fed. Rep. 906 (C. C. A.); Fredrick Mfg. Co. v. Devlin, 127 Fed. Rep. 71 (C. C. A.); TrovCo. v. Potter, 139 Ala. 359; Wells t\ Gress, 118 Ga. 5G6; Martin i>. Roehm, 92 111. App. 87*; Horwich v. Western Brewery Co., 95 111. App. 162 ; Spring v. Slayden- Kirksey Mills, 100 111. App. 579; Telluride Co. v. Crane Co., 208 111. 218; Burnett v. Ilensley, 118 la." 575; Parsons Co. v. Mallinger, 98 N. W. Rep. 580 (la.); Gardener v. Winter, 25 Kv. L. Rep! 1472; White v. Cakes, 88 Me. .367; Queen City Glass Co. v. Pittsburg Clay Pot Co., 97 Md. 429; Dav v. Mapes-Reeve Co., 174 Mass. 412; West Michigan Co. v. Dia- mond Glue Co., 87 N. W." Rep. 92 (Mich.); Miamisburgoe Co. v. Wohlhuter, 71 Minn. 484; St. Louis Brewing Assoc, v. McEnroe, 80 Mo. App. 429 ; Creasy v. Gray, 88 Mo. App. 454; Gregg V. Page Belting Co., 69 N. H. 247; Ivans r. Laury, G7 N. .T. L. 153; Carleton v. Lombard, 149 N. Y. 137; Bierman v. Citv Mills Co., 151 N. Y. 482; Prentice ». Fargo, 53 N. Y. App. Div. 608; Smith v. Coe, 55 N. Y. App. Div. 585; Bell v. Mills, 78 N. Y. App. Div. 42; Piel v. Nat. Cooperage Co., 85 N. Y. App. Div. 613; Southern Brass Co. r. Exeter Mach. Works, 109 Tenn.67; McQuaid r. Ross, 85 Wis. 492. SECT. ILj 3URNBY V. BOLLETT. 731 BURNBY V. BOLLETT. In the Exchequer, April 21, 1847. [Reported in 16 Meeson Personal Property, 327. All contracts of sale with warranty, there- fore, must contain two independent stipulations : — First. An agreement for the transfer of title and possession from the vendor to the vendee. Second. A further agreement that the subject of the sale has certain qualities and conditions. It is not necessary that in the collateral agreement the word war- rant}' should be used. No particular phraseology is requisite to con- stitute a warranty. ^' It must be a representation which the vendee relies on, and which is understood by the parties as an absolute asser- tion, and not the expression of an opinion." Oneida Manufacturing Society v. Lawrence, 4 Cow. 440. It is not necessary that the vendor should have intended the representation to constitute a warranty. If the writing contains that which amounts to a warranty, the vendor will not be permitted to say that he did not intend what his language clearly and explicitly declares. Hawkins v. Pemberton, 51 N. Y. 198. In that case the defendants purchased at auction an article, relying Mpon the representation of the auctioneer that it was " blue vitriol." It was in fact " Salzburger vitriol," an article much less valuable. In 'in action brought against the purchaser the trial court directed a verdict for the plaintiff. This was held to be error, because the rep- resentation at the sale amounted to a warranty. Judge Earl, in delivering the opinion of the court, after collating and discussing the authorities upon the subject of warranty, said : "The more recent cases hold that a positive affirmation, understood and relied upon as such by the vendee, is an express warranty." In Kent v. Friedman, 17 Wkly. Dig. 484, Judge Learned in iiis SECT. II.] FAIRBANK CANNING CO. V. METZGEE. 767 opinion saj's : •' There can be no difference between an executor}' contract to sell and deliver goods of such and such a quality, and an executory contract to sell and deliver goods which the vendor warrants to be of such and such a quality. The former is as much a warranty as the latter." The Court of Appeals subsequently affirmed the judg- ment of the General Termwithout an opinion. 101 N. Y. 61G. In White v. Miller, 71 N. Y. 118, frequentl}' referred to as the "Bristol cabbage seed case," the Court says: "The case of Hawkins V. Pemberton, supra, adopts as the law in this State the doctrine upon this subject now prevailing elsewhere, that a sale of a chattel by a particular description is a warranty that the article sold is of the kind specified." So, too, a sale by sample imports a warrant}' that the qualit}' of the goods shall be equal in ever}' respect to the sample. Brigg v. Hilton, 99 N. Y. 517, and cases cited. Now, in the case before us, the defendants undertook to purchase of the plaintiff fresh dressed beef to be wholesaled in part and the residue retailed to their customers. They endeavored to procure good beef. Not only did they contract for beef that was clean, well dressed, in first-class condition in every respect, and merchantable, and that was thoroughly chilled before being loaded on the cars ; but further, that they should not be given beef that had been heated before being killed. When, therefore, the plaintiff placed in a suitable car beef well- dressed and clean, and of the general description given in defendants' order, it had made a delivery of the merchandise sold, and by the terms of the contract was entitled to be paid as soon as the bill should reach defendants, and before the arrival of the beef made an examination by defendants possible. But there was another collateral engagement, and yet forming a part of the contract, which the plaintiff had not performed, — an engage- ment of much consequence to tlie defendants and their customers, because it affected the quality of the meat. Upon its performance or non-performance depended whether it should be wholesome as an article of food. It was of such a character that defendants were obliged to rely solely upon the representation of the plaintiff in respect thereto, The plaintiff or its agents selected from their stock the cattle to be slaughtered. No one else knew or could know whether they were lieated and feverish. Inspection immediately after placing the beef in the car would not determine it. That collateral engagement consisted of a representation and agreement that plaintiff would deliver to the defendants beef from cattle that had not been heated before being slaughtered. Such representation and agreement amounted to an express warranty. The referee found as a fact, " that the meat had been heated before being killed," therefore there was a breach of the warranty, and the defendants are entitled to recover their damages, by way of counter- 768 FAIRBANK CANNING CO. V. METZGER. [CIIAP. V. claim, unless such right must be deemed to have been subsequently waived. It is not necessary for the disposition of this case to decide, and therefore it is not decided, whether a warranty is implied in all cases of a sale of fresh dressed meat, by the party slaughtering the animals, that they were not heated before being l-cilled, and, as some of iny associates are averse to any expression whatever upon that question at this time, what is said must be regarded as an individual view rather than that of the court. My attention has not been called to a decision in this State covering that precise question. It was determined in Divine v. McCormick, 50 Barb. 116, that in the sale of a heifer for immediate consumption, a warranty that she is not diseased and unfit for food is implied. That decision is well founded in principle, and is in accordance with a sound public policy, which demands that the doctrine of caveat emptor shall be still further encroached upon, rather than that the public health shall be endangered. I see no reason for applying the rule to one who slaughters and sells to his customers for immediate consumption, and denying its application to one who slaughters and sells to another to "be retailed by him. In each case it is fresh meat intended for immediate consumption. The rule is well settled by the courts of last resort in many of the States that a vendor of an article manufactured by him for a particular use impliedly warrants it against all such defects as arise from his unskilfulness, either in selecting the materials, or in putting them together and adapting them to the required purpose. See cases cited in Albany Law Journal, vol. 18, p. 324. One who prepares meat for the wholesale market may be said to come within that rule, — because he purchases the cattle ; determines whether they are healthy and in proper condition for food ; and upon his skill in dressing and preparing the meat for transportation a long distance, its quality and condition as an article of diet for the consumer largely depends. In two of the States, at least, it is held that where perishable goods are sold to be shipped to a distant market, a warranty is implied that they are properly packed and fit for shipment, but not that they will continue sound for any particular or definite period. Mann v. Evers- ton, 32 Ind. 355 ; Leopold /'. Van Kirk, 27 AVis. 152. The respondent insists that the act of defendants' agent in selling some sixty quarters of the beef before the car reached Elmira, when the defendants, after making a personal examination, immediately shipped that which remained unsold to the plaintiff, constituted a waiver of their claim for damages. It is undoubtedly the rule that in cases of executory contracts for the sale and delivery of personal property, if the article furnished fails to conform to the agreement, the vendee's right to recover damages does not survive an acceptance of the property, after opportunity to ascertain the defect, unless notice SECT. II.] ZABEISKIE V. CENTRAL VERMONT RAILROAD. 769 has been given to the vendor, or the vendee offers to return the prop- erty. Reed v. Randall, 29 N. Y. 358 ; Beck v. Sheldon, 48 N. Y. 365 ; Coplay Iron Company v. Pope, 108 N. Y. 232. But when there is an express warranty it is unimportant whether the sale be regarded as executory or in pf'cese?iti, for it is now well settled that the same rights and remedies attach to an express warranty in an executory as in a present sale. Day v. Pool, 52 N. Y. 416; Parks V. Morris Ax & Tool Compan}', 54 N. Y. 586 ; Bounce v. Dow, 57 N. Y. 16 ; Brigg v. Hilton, 99 n" Y. 517. In such cases the right to recover damages for the breach of the warrant}' survives an acceptance, the vendee being under no obligation to return the goods. Indeed, his right to return them upon discovery of the breach is questioned in Day v. Pool, sujjra. And Judge Danforth, in Brigg v. Hilton, supra, after a careful review of the leading authorities upon the question, states the rule as follows : " Where there is an express warranty, it is, if untrue, at once broken, and the vendor becomes liable in damages ; but the purchaser cannot for that reason either refuse to accept the goods or return them." It follows, from the views expressed, that the judgment should be reversed. All concur, except Follett, C. J., not sitting. tTudgment reversed. o ZABRISKIE V. CENTRAL VERMONT RAILROAD CO. Nevt York Court of Appeals, December 2, 1891 — February 2, 1892. [Reported in 131 New York, 72.] RuGER, C. J. This action was brought b}' the plaintiff to recover the contract price of a certain quantity of coal sold and delivered by Robert Hare Powell & Co. and their assignee, the Guarantee Trust and Safe Deposit Compan}', to the defendant, after June, 1887, and which claim was assigned by the vendors to the plaintiff. This coal was furnished by the vendors to the defendant under a written contract made June 8, 1887, between Powell & Co. and the defendant, whereby the said vendors agreed to sell and deliver to the defendant, during the year ending June 1, 1888, at Norwood, N. Y., 30,000 tons of " Powelton coal, of same quality and kind as furnished you during the i)ast year," at $3 per net ton. The same vendors had furnished the defendant a quantity of Powel- ton coal the previous year, which had been approved as satisfactory by the defendant. Under the contract of 1887, Powell & Co. had, previous to August 29, 1887, delivered to the defendant on its contract, upwards of four thousand tons of coal, and on that day the}' assigned their con- tract to the Guarantee Trust and Safe Deposit Company, who continued 770 ZABRISKIE V. CENTRAL VERMONT KAILROAD. [cHAP. V. delivering coal until they were stopped by the absolute refusal of the defendant to receive any more coal from them of the kind already delivered. The assignee of the contract had, up to this time, delivered about five hundred tons, leaving some twenty-five thousand tons yet undelivered to complete the performance of the contract. Immediately after the defendant had had an opportunity to test the first delivery of coal, and until it ceased altogether, it uniformly and constantly complained of the quality of the coal delivered to it, and objected tluit it did not corresi)ond, either in quality or kind, with the coal delivered to the company in the year 1886. The defendant, how- ever, was induced to continue to receive and to test the coal actually delivered, ))y the representations and promises made by the plaintiff's assignors tliat the quality of the coal thereafter delivered should be improved, and that upon trial it would be found to work more satisfac- torily. Various interviews took place between the agents of the defend- ant and the plaintiff's assignors, and several examinations were made by them after the coal was delivered and in possession of defendant, and the vendors uniformly promised to improve the quality of the coal delivered, and predicted that the future deliveries would, upon actual experiment, prove to conform to the quality of the coal described in the contract, and that compensation for the damages caused by the inferior quality of the coal already delivered, should be adjusted. It was found by the referee that practically all of the coal delivered under the contract was greatly inferior to that furnished in the year 1886. It is clearly inferable from the findings of the referee, as well as the evidence, that the great bulk of the coal was received bj' the defendant at the earnest solicitation of the vendors, and for the purpose of testing its quality and determining whether the vendors would be able to make its quality conform to the obligations of their contract. It is also evident from the findings that this effort was an unqualified failure. It is contended b}' the plaintiff that there was no warranty of the quality of the coal sold, and that, by its acceptance, the defendant has precluded itself from claiming damages for a breach of contract. A satisfactory answer to this claim appears in the fact that it is not found or shown that the defects in the coal were visible on inspection ; but, on the contrary', it negatively appears from the conduct of both the vendors and vendee that thej' were not discernible on inspection. A further answer to this point is found in the proposition that the evi- dence authorized the finding that there was a warrant}' as to the quality of the coal sold. The contract in this case calls for Powelton coal of the " same quality and kind as furnished " b}- the vendors to the defendant the preceding year. It calls for coal of a particular quality and kind, determinable by a standai'd which was equally well known and understood, both b}' the vendors and the purchaser. AVhile the term "Powelton coal" may be said to be a descriptive term, merely ; when it is said that the coal SECT. II.] ZABRISKIE V. CENTRAL VERMONT RAILROAD. 771 was to be Powelton coal of the same quality and kind as that delivered in the previous year, it goes beyond mere words of description, and refers to the intrinsic value of the goods sold in language which cannot be misunderstood, and can be satisfied only by a consideration of its fitness to perform the work required of it in tlie defendant's business. That this was the theorj- of the vendors while the coal was being deliv- ered, is quite evident from their request that it should not be prema- turely judged by its appearance alone, but should be determined by positive trial and the results shown by actual use and experiment. It comes, therefore, with ill grace from the vendors now to insist that the defects in the coal were so perceptible on inspection that the defendant should be barred b}- its acceptance, when the}- themselves had induced that acceptance onl}' by the assurance that tlie working quality of the coal would show that the defects visible on inspection were apparent and not real. We are, however, of the opinion that, upon the evidence, the contract contained a warrant}- of quality whicli survived the acceptance of the goods. The principle is well establislied that, upon an executory sale of goods b}- sample, with warranty that the goods shall correspond with the sample, the vendee is not precluded from claiming and recovering damages for breach of warranty, although he has accepted the goods after an opportunit}- for inspection. Kent v. Friedman, 101 N. Y. 616 ; Brigg V. Hilton, 99 id. 517 ; Gurnej- v. Atlantic & Great Western R. Co., 58 id. 358. We are, also, of the opinion that the sale in question was, practicall}-, a sale b}- sample. Although the standard selected for comparison was not present, or in existence even, at the time of the sale, its qualities had been observed and demonstrated, and were capable of exact ascer- tainment by the evidence of those who had witnessed tlie results pro- duced by the consuniption of the coal. It was unnecessar}- for the purpose of effecting a comparison of the respective qualities of the two specimens of coal that they should be present and compared side b}' side, or tested at the same time. Tlie capacity of coal for generating heat and steam determines its value, and it is only by the destruction of the subject that a standard can be created for comparison. The com- parison does not depend upon considerations of external correspondence and appearance, and this was obviouslj- the view which these parties took of tlie question while negotiating as to the continuance of the deliveries of coal under this contract. The standard selected for testing the quality of the goods sold was considered sufficiently definite and precise by the parties to the contract, and it does not appear that there was any difficulty in practice in apply- ing it to tiic subject. A contract of sale which points out a known and ascertainable stan- dard by which to judge the qualit}- of goods sold, is, for all practical purposes, a sale by sample, and renders the vendor liable for damages upon a breach of warranty, although there has been an acceptance after 772 UNDERWOOD V. WOLF. [CHAP. V. opportunity to inspect the goods. The eases of Coplay Iron Co. v. Pope, 108 N. Y. 232 ; Studer v. BUnstein, 115 id. 316 ; Pierson v. Crooks, id. 539, and other cases of like character are clearly distinguishable, inas- much as one is a contract concerning a sale by sample and the others were executory contracts for the manufacture and sale or delivery of goods of a particular description. In cases of the latter character, where the quality of goods is capable of discovery upon inspection, and where, after full opportunity for such inspection, the goods are accepted and no warranty attends the sale, the vendee is precluded from recovering damages for any variation between the goods delivered and those described in the contract. Judgment affirmed.'^ UNDERWOOD y. WOLF. Supreme Court of Illinois, January 21, 1890. [Reported in 131 Illinois, 425.] Mr. Justice Magruder delivered the opinion of the court : — The contract bears date Feb. 8, 1886. By its terms the appellee was to furnish and erect the refrigerating machinery with engine, pump, pipes, etc., in the packing-house of the appellants, and have the same in complete working order by the 8th day of May, 1886. The evidence tends to show that the whole plant was not ready for use until the 1st day of July, 1886. The evidence further tends to show that the appellants were carrying on their packing business while the appellee was putting in the ma- chinery. The appellee claims that the conduct of the business under such circumstances necessarily interfered with his work and delayed its progress. He also claims that delay was caused by the failure of the appellants to prepare in proper time the room in which the ma- chinery was to be erected. Whether the delay in the completion of the plant was due to the fault o'f the appellee or to that of the appellants was a question of fact to be determined by the jury under proper instructions from the court. We see no objection to the tenth instruction given for the defendants below, as modified by the court. It told the jury that " under the contract in evidence the plaintiff was bound to complete the whole plant in complete working order and condition within ninety days from the 8th day of February, a. r>. 1886, sinless 2yrevented hy the acts or fault of the defendants ; and if the evidence shows that he did not do it, then he is liable in this action to the defendants for any dam- ages the evidence may show they have sustained by reason of such delay." This instruction was given as asked by the defendants except 1 A portion of the opinion irrelevant to the subject of warranty is omitted. SECT. II.] UNDERWOOD V. WOLF. 773 that the words in italics were added b}' the court. It was proper to add the words in question because the contract required the defendanis to furnish a room, foundations, masonr\', carpenter work, and all stearn and feed and discharge water connections, and to properly insulate the rooms according to plans, etc., and if dela}' resulted from their failure to meet these requirements, the plaintiff certainl}- could not be held responsible. The jiwy found in his favor upon this question, and the judgment of the Appellate Court forbids us to disturb the finding. But the main controversy between the parties arises upon the follow- ing provision in the contract : ' ' And it is further agreed . . . that if the machines have fulfilled the guaranties made for them in this agree- ment b}' 1st of September, 1886, then said part}' of the second part [appellants] shall accept the same ; and all payments to be made after the payment to be made on July 1, 1886, shall be promissory notes, dated on the day of acceptance of the plant with interest after ma- turity." The defendants refused to give and have never given the notes thus provided for. What are the guaranties which were to be fulfilled? The plaintiff, Wolf, agreed and guaranteed, that the machine would maintain certain degrees of cooling temperature in certain rooms in the packinghouse, and would cool the rooms within a certain specified time ; that it would cool a certain number of hogs of a specified weight within a specified time ; that the power required to drive the machinery should not exceed a certain limit ; tliat the fuel required to produce the steam to do the work of the engines should not exceed a certain amount ; that the loss of ammonia in doing the work should not exceed a certain number of pounds ; that the refrigerating machines should be of the best material and workmanship ; that the engine should be capable of running the packing-house machiner}- in addition to the compressors ; that the iron piping to be furnished should be such as would be necessar}' to carrj* and convey the brine required for the proper cooling of the rooms. In considering tiie nature of these guaranties, it is unnecessary to discuss any nice distinctions between warranties on the one side, and conditions precedent or descriptions of the property on the other. It is sufficient that the guaranties are treated as warranties, and their non- fulfilment, if they were not fulfilled, will be regarded as a breach of warrant}-. Inasmuch as tlie i)lant was to be completed bj' May 8, 1886, and was to be accepted if the guaranties were fulfilled b}' Se[)tember 1, 1886, it is manifest that the period between these two dates was to be made use of for the purpose of testing the machines, in order to ascertain whether or not the}' were such as tiiey were guaranteed to be. It is also sufficiently manifest that, if the machines failed in any of the par- ticulars named in the guaranties, the defects which would thus be shown to exist must be regarded as patent defects as contradistinguished from latent defects. Where there is a sale and delivery of personal property in prcesenti 774 UNDERWOOD V. WOLF. [CHAP. V. with express warranty, and the property turns out to be defective, the vendee may receive and use the property and sue for damages on a breach of the warranty, or, when sued for the purchase price, he may recoup such damages under the general issue, or set them up in a special plea of set-off. This is a well-settled rule. In the present case the contract is executory ; the title to the property did not vest in the pur- chaser until the period for making the test had passed. It has been held In some States that, where the contract is thus executory and a time is fixed for making a test, the acceptance and use of the property, after such time has passed, amount to a waiver of the right to claim damages for a breach of tlie warranty. But such is not the law in this State. In the present case, the evidence tends to show that the defendants took possession about July 1, 1886, of the machines, placed in their packing-house by tlie plaintiff, and had been using the same up to the time of the trial of the cause in the court below. The chief complaint of the appellants is that, under the instructions given by the trial court, the jury wei*e led to regard the acceptance and use of the machinery by the defendants as an abandonment of all right to damages for breach of the warranties. We are unable to regard this complaint as well founded. We agree with the counsel for appellants, in the main, in their view of the law. We think that, even where the contract is executory, the claim for damages on account of a breach of the warranty will survive the acceptance of the property. Chitty on Contracts (11th ed.) at page 652 says: "Where, therefore, the vendor of a warranted article, whether it be a specific chattel or not, sues for the price or value, it is competent to the purchaser, in all cases, to prove the breach of the warranty in reduction of damages, and the sum to be recovered for the price of the article will be reduced by so much as the article was dimin- ished in value bj' non-compliance with the warranty." The previous discussion of the authorities by the author, before arriving at the con- clusion thus announced, shows his meaning to be, that the breach of the warranty ma}' be proven in reduction of damages, not onh' in the case of the sale of a specific chattel, but also in the case of an executory contract, as, for example, "where an article is ordered from a manu- facturer who contracts that it shall be of a certain quality, or fit for a certain purpose." Idem, pages 647 to 652. In Benjamin on Sales, Vol. 2, § 1356 (4th Am. ed.), it is said: " The buyer will also lose his right of returning goods delivered to him under a warrant}' of qualit}', if he has shown b}' his conduct an accept- ance of them, or if he has retained them a longer time than was reason- able for a trial, or has consumed more than was necessary for testing them, or has exercised acts of ownership as by offering to resell them ; all of which acts show an agreement to accept the goods, but do not constitute an abandonment of his remedy by cross-action or b}- counter- claim in the vendor's action for the price." If the retention of the pi'operty by the buyer for a longer time than is reasonable for a trial SECT. II.] UNDEKWOOD V. WOLF. 775 does not waive his right to damages in an action by the vendor for the puichase price, then there is no reason why liis retention of the property for a longer time than that fixed in the contract for a trial should amount to such waiver. The rule, as announced by these text writers, has been held to be the law in this State. In Babcock v. Trice, 18 111. 420, there was an executory contract for the sale and delivery of corn with an implied warranty that it should be of a fair and merchantable qualit}- ; it was there said : " It is true that the acceptance of corn under an executory contract, with opportunity of inspection at the time of delivery, ivitJiout co7nplaint, ma}- raise a pre- sumption that it was of the quality contemplated by the parties, but it will not preclude the party from showing and setting up the actual de- fect in quality and condition. . . . He could, . . . under the general issue prove the facts out of which the warranty arose, the breach and his damages by way of recoupment," etc. Crabtree v. Kile, 21 111. 184. In Strawn v. Cogswell, 28 III. 457, which was a petition for a mechanic's lien founded upon a contract to furnish iron castings for a grist mill, and where the defence was that the work was not done in a workman- like manner, and the materials were not of the quality required by the contract, we said, " Improvements of this description being permanent and fixed, and requiring skill to test their suflBcieney, their being re- ceived and put to use is not such an acceptance as estops the party from claiming damages for their being defective." In the case at bar, the refrigerating machines were so built into the packing-house and so much a part thereof, that their removal could only have been accomplished with difficulty, and perliaps with injury to the house itself. The mere use of them by the defendants after September 1, 1886, might not of itself amount to such an acceptance as would pre- clude them from claiming damages for defects. Hears v. Nichols, 41 111. 207 ; Peck v. Brewer, 48 111. 54. In Doane v. Dunham, 65 111. 512, and same case, 79 id. 131, the dis- tinction between executory and executed contracts was recognized, and it was held that, in the former, the law gives the buyer a reasonable time for making an examination of the chattels sold ; that it is for the jury to determine under all llie circumstances what is such reasonable time ; that a failure to make the examination within a reasonable time may preclude the buyer from offering the property back, rescinding the contract and avoiding payment on that ground, but will not deprive him of the right to rely upon the breach of the warranty for damages. The only difTercncc ])etween that case and the one at bar is, that there the law gives time for examination or test, while here the contract fixes the time. The same rule, however, will apply to both cases. Estcp v. Fenton, 66 111. 467. In Owens v. Sturges, 67 111. 366, it was held that where the contract is unexecuted, tlic l)uyer may retain the property and show the war- ranty and breach to reduce the recovery, even though he neglected to return the property upon discovery of the breach. 776 UNDERWOOD V. WOLF. [CHAP. V. In Prairie Fanner Co. r. Taylor, 69 111. 440, the contract was to set up a printing-press in complete running order in the defendant's press- room within seventy days from the acceptance of the plaintiffs proposi- tion, witli warranty that the press should give complete satisfaction, and granting to the defendant thirty days' time from the setting up of the press to decide whether tlie warranty was good ; the defendant gave no notice of its intention aftei- the thirty days had passed, but kept the press; it was held, that the continued use of the press indicated the vesting of the title in the buyer, and that the defendant could recoup his damages from the contract price if there had been a breach of the warrant^'. We are, therefore, of the opinion that the defendants had a right, in the case at bar, to offset, against plaintiff's claim for the contract price of the machines, such damages as they were able to show that they had sustained from a failure to fulfil the guaranties, if there was such failure. The subject presents itself under two aspects : first, were the ma- chines such as they were warranted to be in the contract? second, if they were not such as the}' were warranted to be, was there such an acceptance of them as would preclude the defendants from insisting upon damages for the breach? The case seems to have been tried mainly upon the theorj- suggested by the first question. The plaintiff introduced proof to show that the machines did fulfil the guaranties, while the defendants produced evi- dence to show that they did not fulfil the guaranties. In other words, the question most prominently presented to the minds of the jury was, not whether there had been a waiver of existing defects, but whether Qr not any defects actually existed. Upon the latter subject they were most full}- and elaborately instructed by the court. The court gave nine or ten instructions asked by the defendants, authorizing the jur}' to give them damages for the breach of the warranties if the juiy should find from the evidence that the machines did not fulfil the guaranties. These instructions all adopt and express the theory of the law con- tended for b}' the counsel for appellants. The}' announce over and over again, that the defendants were entitled to damages if the ma- chines were not what they were warranted to be as to cooling capacity for rooms and hogs, as to amount of power and fuel and piping, etc., and as to every other particular specified in the contract. The jury b}' their verdict and the Appellate Court by their judgment of affirmance have found the fact to be that the defendants had not suffered the dam- ages claimed b}' them. Hence, such fact is settled beyond our power to change it. But counsel say, that the instructions given for the defendants, although announcing a correct rule of law, were contradicted l)y the instructions given for the plaintiff, and that the jury were left at liberty to follow either of two sets of contradictor}- instructions, unenlightened as to what the law really was. We do not think that the iflstructions SECT. II.] UNDERWOOD V. WOLF. 777 taken as a whole can be regarded as laying down contradictory prin- ciples. Certainly no instruction given for the plaintiff states that the defendants were not entitled to damages for breach of the wananties. On the contrary, several of them expressly recognize the right of the defendants to claim damages. The fourth instruction given for the plaintiff told the jury, that, so far as the defendants relied upon a breach of warranty as a defence, or by way of set-off, the burden of proof was upon them "as to such breach and as to any damages, if any, arising therefrom, and unless they prove such breach and damages as alleged by them by a prepon- derance of the evidence, then they will not be entitled to any benefit therefrom in this suit." This language most clearly conveys the idea that if the defendants did prove the breach and damages by a prepon- derance of the evidence, they would be entitled to the benefit thereof. The fifth of plaintiff's instructions told the jury that damages for breach of warranty of machinery did not include probable profits or prospective gains, thereby implying that such damages as did not in- clude probable profits or prospective gains might be recovered. The first instruction given for the plaintifl^", in reciting the conditions upon which the plaintiff would be entitled to recover interest upon the notes, uses these words: "The court instructs the jury, that, if they believe from the evidence that the plaintiflf has made out his case as by him alleged in his declaration," etc. The plaintiff in his declaratioia alleges that he has furnished machines, tanks, engine, piping, etc., of such description, quality, and capacity as the contract calls for, and that he has kept the contract in all things on his part, and performed all the covenants therein within the time and in the manner therein provided. In other words, the first instruction requires the jury to find, as a con- dition of recovery, that the plaintiff has fulfilled all the guaranties above specified. This requirement negatives the idea that the defend- ants, by acceptance or other acts, had waived their right to claim dam- ages for a non-fulfilment of the guaranties. The obscuritj' which seems to exist in one or two of the instructions given for the plaintiff, will disappear upon considering the true mean- ing of some of the terms therein used. Wliere the contract for the sale of the goods is an executory one, and the time for examination, whether fixed by the contract or allowed by the law, has passed, the buyer may refuse to accept tlie goods and may return them, or he may accept them and sue for breach of war- ranty, or rely upon the damages for such breach in reduction of tlie contract price. Benjamin on Sales, 4th Am. ed., vol. 2, §§ 134G, 1347, 1348, etc.; Doane /'. Dunham, siqva / Owens v. Sturges, siqva ; Mears v. Nichols, supra. If he desires to rescind the contract and return the goods, he must offer them back as soon as he discovers the breach, or after he has had a reasonable time for examination ; such right to rescind and return is waived by retaining and continuing to use the goods longer than is necessary for a trial of them. 778 UNDERWOOD V. WOLF. [CHAP. V. There is some evidence tending to show that Viles, one of the defend- ants, reqnested tlie plaintiff to remove the machine. Such request if made would indicate an intention on the part of the defendants not to accept the machine, but to rescind the contract. Hence, no harm was done by giving the plaintiii's eighth instruction. That instruction meiely told the jury that the right of the bu3'er to reject the article sold to him, or, in other words, his right to return it and rescind the eon- tract, might be waived or lost by acts inconsistent with the ownership of the vendor or by the continued use of the article after knowledge of the defects. But the impression was in no way eonve3'ed to the minds of the jury that, if defendants elected to accept the machine and not to return it, their right to offset damages for breach of warranty against the contract price would be waived b}' such acts and such continued use as are specified in the instruction. Waiver of the right to return the machine is one thing ; waiver of the right to claim damages is another and entirely different thing. The third instruction given for the defendants expressly told the jury that " the defendants were not bound to return the said machines and apparatus, if found not to be according to the warrant}', but might keep the same, and, when sued for tlie price, set up such warranty and the breach thereof as a defence, and, if proven, be allowed the amount of damages the}' have sustained by reason of the breach of the warranty." It is also to be observed that the word " acceptance," as used in reference to the subject-matter of this controversy, has two significa- tions. Where goods are sold under an executor}- contract, there may be an acceptance of them in full discharge of the contract, or there may be an acceptance of them in such sense that the buyer retains and uses them and becomes vested with the title and ownership of them, but re- serves the right to claim damages for their defects. This distinction is recognized in Estep v. Fenton, supra, and in Mears v. Nichols, supra. It is also recognized in the fourth instruction given for the defendants in this case, whieli told the jury that " the defendants are not prevented from setting off the damages they may have sustained by reason of the performance of the contract in a manner different from the agreement merely because they may have done acts amounting to an acceptance of the machine. They could only be prevented from setting off such damages so sustained in case they had accepted the machine iu full dis- charge of the contract." So, also, the seventh instruction given for the plaintiff contains these words: " If the jury shall believe fro.n the evi- dence that, prior to the bringing of this suit, defendants did- accept said machine i7ifull discharge of the contract, then the jury are instructed that defendants are not entitled to set off or recover in this action any damages resulting to them, if any, by reason of plaintiff's failing to meet the guaranties made by him in said contract." Under these and other instructions that were given, the jury could not have been led to believe, that the right of the defendants to claim damages for breach of the warranties was cut off or waived by any other kind of acceptance than an acceptance in full discharge of the contract. SECT. II.] UNDERWOOD V. WOLF. 779 The sixth instruction and the first sentence of the seventh intended to call the attention of the juiy to the time allowed to the defendants for the purpose of testing the machine. Therein the jur}' were told that, if the time for making the test, which b}' the terms of the contract expired on Sept. 1, 1886, was extended beyond that date by arrangement between the parties, then whatever the defendants were required to do b}' Sept. 1, 1886, either in the matter of rejecting the machine, or of accepting it — whether such acceptance should be in full discharge of the contract, or with a reservation of the right to offset damages for breach of the warranties — the}' might do at the expiration of the period as thus extended. There was nothing in the language used that could by any possibilitv have been construed as a denial of the right to claim damages for a failure to fulfil the guaranties. We perceive no such error in the record as will justif}* us in reversing the judgment. The judgment of the Appellate Court is aflSrmed. Judgment affirmed.'^ 1 In Engh'sh v. Spokane Commission Co., 57 Fed. Kep.451,456, Hawley, J-, deliver- ing the judgment of the Circuit Court of Appeals for the ninth circuit, said : " There has been some controversy in the courts as to the right of the purchaser to accept the goods and rely upon the warranty, some of the authorities holding that where tlie sale is executory, and the goods, upon arrival at the place of delivery, are found upon exam- ination to be unsound, the purchaser must immediately return them to the vendor, or give him notice to take them back, and thereby rescind the contract, or he will be presumed to have acquiesced in the quality of the goods. But the great weight of authority, as well as reason, is now, we think, well settled that, in cases of this kind and character, if the goods upon arrival at the place of delivery are found to be unmer- chantable in whole or in part, the vendee has the option either to reject them or receive them and rely upon the warranty ; and, if there has been no waiver of the right, he may bring an action against the vendor to recover the damages for a breacii vf the warranty, or set up a counterclaim for such e contract price (thirteen cents, less five per cent discount) per pound, and the market price of such paper (twenty-two cents per pound) at the time of such breach, on 20,000 pounds, amount, to said sum of $1,930. As matter of law : That the plaintiffs are entitled to recover of the defendants said sum of $1,930, with interest thereon since the 1st day of January, 1863, that is to say, the sura of $2,301.51, with costs. Augustus F. Smith, for the appellants. John JE. Parsons^ for the respondents. Hunt, C. Tiie paper to be delivered was not in existence at the time of the making of the contract in October, 1862. It was yet to be brought into existence by the labor and the science of the defendants. Of the 20,000 pounds to be delivered, not an ounce had then been man- ufactured. It was all of it to be created by the defendants, and at their mill. In such a case it is well settled, that the Statute of Frauds does not apply to the contract/ The distinction is between the sale of goods in existence, at the time of making the contract, and an agreement to manufacture goods. The former is within the prohibition of the statute, and void unless it is in writing, or there has been a deliver}' of a portion of the goods sold or a payment of the purchase-price. The latter is not. The statute reads, "Ever}' contract for the sale of an}- goods, chattels, or things in action, for the price of fifty dollars or more, shall be void unless," etc. 2 R. S. 136, § 3. The statute aUudes to a sale of goods, assuming that the articles are already in existence. This distinction was settled in this State in 1820, by the case of Crookshank v. Burrell, 18 John. R. 58, and has been followed and recognized in man}' others. Sewall I'. Fitch, 8 Cowen, 215 ; Robertson v. Vaughn, 5 Sand. S. C. R. 1 ; Bronson v. Wiman, 10 Barb. 406 ; Donovan v. Willson, 26 Barb. 138 ; Parker v. Schenck, 28 id. 38 ; Mead v. Case, 33 id. 202 ; Smith v. N. Y. Central R. R. 4 Keyes, 194. The present is not one of the border cases, in which an embarrassing or doubtful question is presented, as where wheat is sold, but the labor of threshing remains to be done. Downs v. Ross, 23 Wend. 270 ; or a sale of flour which has yet to be ground from the wheat, Garbutt v. Watson, 5 B. & Aid. 613 ; or the sale of wood or timber which requires to be cut and corded. Smith v. N. Y. Central R. R., supra ; nor where the defendants might procure other parties to manufacture the paper. 3 Pars, on Contracts, 52. It was a simple naked agreement to manu- SECT. I.] PARSONS V. LOUCKS. 797 facture at their own mills, and deliver at a specified price, 20,000 pounds of i)auer of specified sizes, no part of wliicli was in existence at the time of malcing the contract. Indeed, there is no evidence that the rags and otlier materials from which it was to be manufactured were owned b}' the defendants, or were in existence, except so far as it ma}- be argued that matter is indestructible, and that in some form the}' must necessa- rily have then existed. As to eases of this character, the course of de- cisions in this State has been uniform. If we desired to do otherwise, we have no choice ; we must follow them. The judgment must be affirmed with costs. All concur for affirmance, except Gray, C, dissenting.^ Judgment affirmed loith costs.^ ^ The dissenting opinion of Gray, C, is omitted. ^ In Cooke v. Millard, 65 N. Y. 352, the defendants, desiring to purchase lumber, went to the plaintiffs' yard and were shown lumber of the desired quality, but which needed to be dressed and cut into the different sizes desired. An order was given orally for certain quantities. The order was complied with, and the lumber was placed as ordered on the plaintiffs' dock. While there it was burned. Tlie plaintiffs sued for the price. ])wight, Commissioner, in giving judgment for the defendant said : " The New York rule is still different. It is held here by a long course of decisions, that 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 flour from wheat not yet ground, or nails to be made from iron belonging to the manufacturer, is not a contract of sale. The New York rule lays stress on the word 'sale.' There must be a sale at the time the contract is made. The latest and most authoritative expres- sion of the rule is found in a recent case in this court. Parsons v. Loucks, 48 N. Y. 17, 19. The contrast between Parsons v. Loucks, in this State, on the one hand, and Lee V. Griflfin, 1 Best & Smith, 272, in England, on the other is, that in the former case, the word ' sale ' refers to the time of entering into the contract, while in tlie latter, reference is had to the time of delivery, as contemplated by the parties. If at that time it is a chattel it is enough, according to the English rule. Other cases in this State agreeing with Parsons ?'. Loucks, are Crookshank v. Burrell, 18 J. R. 58 ; Sewall r. Fitch, 8 Cow. 215; Robertson v. Vaughn, 5 Sandf. S. C. 1 ; Parker v. Schenck, 28 Barb. 38. These cases are based on certain old decisions in England, such as Towers v. Osborne, 1 Strange, 506, and Cla\ ton v. Andrews, 4 Burrow, 2101, which have been wholly dis- carded in tliat country. " The case at bar does not fall within the rule in Parsons v. Loucks, supra. The facts of that case were, that a manufacturer agreed to make for the other i)arty to the contract two tons of book paper. The paper was not in existence, and, so far as appears, not even the rags, 'except so fnr as such existence may be argued from the fact that mat- ter is indestructible.' So in Sewall v. Fitch, supra, the nails which were the subject of the contract were not then wrought out, but were to be made and delivered at a future day. "Nothing of this kind is found in the present ca.se. The lumber, with the possible exception of the clapboards, was all in existence when the contract was made. It only needed to lie prepared for the purchaser, — dressed and put in a condition to fill his order. The court, accordingly, is not hampered in the disposition of this cause by authority, hut may proceed upon principle. . . . " In the view of these principles the defendants had the right to set up the Statute of Frauds. I think that this was so even as to the c]a])boar(ls. Although not .strictlv in existence as clapboards, they fall within the rule in Smith v. Central Railroad Company, 4 Keyes, 180. They were no more new products than was the wood in that case. There was simply to be gone through with a process of dividing and adapting existing materials to the plaintiffs' use. It would be difficult to distinguish between splitting 798 PARKER V. STANILAND. [CHAP. VL SECTION II. " Goods, Wares, and Merchandises." PARKER V. STANILAND. In the King's Bench, June 13, 1809. [Reported in 11 East, 362. j The plaintiff declared that the defendant was, on the 1st of January, 1809, indebted to him in £500 for a certain crop of potatoes of the plaintiff before that time bargained and sold by the plaintiff to tbe defendant at his request, and by the defendant under that bargain and sale before that time accepted, gathered, dug up, taken, and carried away ; and being so indebted the defendant promised to pay, &c. There was another similar count on a quantum meruit, and other gen- eral counts for goods sold and delivered, &c. The defendant pleaded the general issue, and paid £22 Is. M. into court. It appeared at the trial before Kayley, J., at Nottingham, that the plaintiff, being the owner of a close of about two acres, which was cropped with potatoes, agreed with the defendant on the 21st of November to sell him the potatoes at 4s. ijd. a sack. The defendant was to get them himself, and to get them immediately. The defendant employed men to dig the potatoes, and got part of them, the value of which was covered by the money paid into court. But there remained about three roods of potatoes which were not dug up, and which were spoiled by the frost ; and the action was brought to recover the value of these. The objec- tion taken at the trial was, that this was an agreement for an interest in land, which was void by the Statute of Frauds. But the learned judge overruled the objection ; reserving leave to the defendant to move to enter a nonsuit, if the court should think the objection well founded. Clarke and Hemming now showed cause against the rule. Balguy and Balgiiy, Jr., in support of the rule. planks into clapboards, and trees into wood. No especial skill is required, as all the work is done by machinery in general use, and readily managed b}' any producers of ordinary intelligence. The case bears no resemblance to that of Parsons v. Loucks, where the pro- duct was to be created from materials in no respect existing in the form of paper. The cases would have been more analogous had the contract in that ca.;e been to di^'ide large sheets of paper into small ones, or to make packages of envelopes from existing paper." Bennett v. Nye, 4 Greene (la.), 410 (conf. Mighell v. Dougherty, 86 la. 480; Lewis v. Evans, 108 la. 296; Dierson v. Petersmeyer, 109 la. 233); Eichelberger v. McCauley, 5 H. & J. 213; Bagby v. Walker, 78 Md. 239; Deal v. Maxwell, 51 N. Y. 652; Higgins v. Murrav, 4 Hun, 565, 73 N. Y. 252; Rutty v. Consolidated Fruit Jar Co., 58 Hun, 611; Winship v. Buzzard, 9 Rich. 103; Suber't). Pullin, 1 S. C. 273; Mattison v. Wescott, 13 Vt. 258; Ellison v. Brigham, 38 Vt. 64; Forsyth v. Mann, 68 Vt. 116, ace. See, also, Hientz v. Burkhard, 29 Oreg. 55. SECT. II.] EVANS V. KOBEKTS. 799 Lord Ellenborodgh, C. J. It does not follow that because the potatoes were not at the time of the contract in the shape of personal chattels, as not being severed from the land, so that larceny might be committed of them, therefore the contract for the purchase of them passed an interest in the land within the 4th section of the Statute of Frauds. The contract here was confined to the sale of the potatoes, and nothing else was in the contemplation of the parties. It is prob- able that in the course of nature the vegetation was at an end ; but be that as it may, they were to be taken by the defendant immediately, and it was quite accidental if they derived any further advantage from being in the land. This differs the present case from those which have been cited. The lessee primce vesturce may maintain trespass quare clcmsum fregit, or ejectment for injuries to his possessory right ; but this defendant could not have maintained either ; for he had no right to the possession of the close ; he had only an easement, a right to come upon the land for the purpose of taking up and carrying away the potatoes ; but that gave him no interest in the soil. I am not disposed to extend the case of Crosby v. Wadsworth further, so as to bnng such a contract as this within the Statute of Frauds as passing an interest in land. Grose and Le Blanc, JJ., agreed. Bayley, J. I do not think that this contract passed an interest in the land within the meaning of the 4th section of the Statute ot Frauds. In the cases of Crosby v. Wadsworth and Waddington v. Brl%tow the contracts were made for the growing crops of grass and hops, and therefore the purchasers of the crops had an intermediate interest in the land while the crops were growing to maturity before tiiey were gathered : but here the land was considered as a mere ware- house for the [)otatoes till the defendant could remove them, which he was to do immediately ; and therefore I do not think tliat the case is within the statute. Itule discharged. EVANS V. ROBERTS. In the King's Bench, Trinity Term, 1826. [Reported in 5 Barnewall .j- Cresswell, 829 ] Indebitatus assumpsit, for crops of potatoes bargained and sold. Plea, the general issue. At the trial before Garrow, B., at the Spring Assizes for the county of Monmouth, 182G, it appeared that on the 25th of September a verbal agreement was made between the plaintiff and defendant, by which the defendant agreed to purchase of the plain- tiff a cover of potatoes then in the ground, to be turned up b}' the plaintiff, at the price of £5, and the defendant paid one shilling earnest. It was objected that this was a contract or sale of an interest in or con- cerning land, within the meaning of the 4th section of the Statute of 800 EVANS V. KOBEKTS. [CHAP. VL Frauds. The learned judge was of opinion that, as the seller was to turn up the potatoes, the contract did not give the buyer an}- interest in the hvnd ; and he directed a verdict to be found for the plaintiff, but reserved liberty to the defendant to move to enter a nonsuit. A rule nisi having been obtained accordingl}', Justice now showed cause. Ludlow, contra. Bayley, J. I am of opinion that in this case there was not a con- tract for the sale of any lands, tenements, or hereditaments, or any interest in or concerning them, but a contract only for the sale and delivery of things which, at the time of the deliver}', should be goods and chattels. It appears that the contract was for a cover of pota- toes ; tlie vendor was to raise the potatoes from the ground at the request of the vendee. The effect of the contract therefore was to give to the buyer a right to all the potatoes which a given quantity of land should produce, but not to give him any right to the possession of the land ; he was merely to have the potatoes delivered to him when their growth was complete. Most of the authorities cited in the course of the argument, to show that this contract gave the vendee an interest in the land within the meaning of the 4th section of the Statute of Frauds, are distinguishable from the present case. In Crosby v. Wads- worth, 6 East, G02, the buyer did acquire an interest in the land; for by the terms of the contract, he was to mow the grass, and must therefore have had the possession of the land for tliat purpose. Besides, in that case the contract was for the growing grass, which is the natural and per- manent produce of the land, renewed from time to time without cultiva- tion. Now, growing grass does not come within the description of goods and chattels, and cannot be seized as sucli under ^fi.fa.; it goes to the heir and not to the executor ; but growing potatoes come witliin the description of emblements, and are deemed chattels, b}' reason of their being raised by labor and manurance. The}' go to the executor of tenant in fee-simple, although they are fixed to the freehold, and may be taken in execution under a Ji. fa.^ by which the sheriff is commanded to levy the debt of the goods and chattels of the defendant ; and if a growing crop of potatoes be chattels, then they are not within the provisions of the 4th section of the Statute of Frauds, which relate to lands, tenements, or hereditaments, or any interest in or concerning them.. In Parker v. Staniland, 11 East, 3G2, the owner of a close cropped with potatoes made a contract on the 21st of November to sell them at so much per sack, and the purchaser was to raise them from the ground immediately ; and that was held not to be a contract for any interest in or concerning land. In that case, as well as in Warwick v. Bruce, 2 M. & S. 205, the potatoes had ceased to grow ; and therefore they are dis- tinguishable from the present ; but the reasoning of Lord Ellenborougli in the latter case may assist us in coming to a rigiit conclusion in the present; he there says: "If this had been a contract conferring an exclusive right to the land for a time, for the purpose of making a profit SECT. II.] EVANS V. ROBERTS. 801 of the growing surface, it would be a contract for the sale of an inter- est in or concerning lands, and would then fall unquestionably within the range of Crosby v. "Wadsworth, supra. But here is a contract for the sale of potatoes at so much per acre : the potatoes are the subject- matter of sale ; and whether at the time of sale they were covered with earth in the field, or in a box, still it was a sale of a mere chattel." It does not appear that the other judges gave any opinion upon that point ; but it is clear that Lord Ellenborough's judgment proceeded upon the ground that if the contract gave to the vendee no right to the land so as to enable him to make a profit of the growing surface, then it was not to be considered as giving an interest in the land, but merely in a chattel. The opinion delivered by Mansfield, C. J., in Em- merson v. Heelis, 2 Taunt. 38, is certainly at variance with our judgment in the present case. But it is first to be observed that it was not neces- sary in that case for the court to decide the question upon the 4th section of the Statute of Frauds, for the contract was signed by the auctioneer as the agent of the buyer, and was equally binding whether it was for a sale of goods and chattels or of an interest in land. The plaintiff there put up to sale on the 25th of September, by public auction, a crop of turnips then growing on his land, in separate lots, and under certain conditions of sale. The defendant, by his agent, attended at the sale, and being the highest bidder for twenty-seven different lots, was declared to be the purchaser ; and the name of the defendant was written in the sale-bill opposite to each particular lot for which he had been declared the highest bidder. Mansfield, C. J., there says : " As to this t)eing an interest in the land, we do not see how it can be distin- guished from the case of hops decided in this court ; and if the auc- tioneer is an agent for the purchaser, then the Statute of P'rauds is satisfied, because the memorandum in writing is signed by an agent for the party to be charged therewith." The ground of the Lord Chief Jus- tice's opinion, as to the contract giving the purchaser an interest in land, was that the case could not be distinguished from that of Waddington v. Bristow, 2 Bos. & Pul. 452. It becomes necessary therefore to consider wlictlier the two cases be similar. In the latter case the contract was made in November for all the hops which should be grown in the ensu- ing year upon a given number of acres of land. At that time the hops which were the subject of the contract were not in existence ; there was nothing l)ut the root of the plant, and the purchaser was not to have that. Tlie question in that case was, not whetiier the agreement, which was in writing, was for an interest in the land, but whether it ought to have been stamped. It was contended that it was, within the exception in the stamp act, an agreement made for and relating to the sale of good.s, wares, and merchandise. All the judges concurred in the judgment that the contract in that case was not an agreement for tlie sale of goods, wares, and merchandise ; but their opinions were founded upon different reasons. Lord Alvanley thought that it was an agreement for the sale of goods, wares, and merchandise, and some 802 EVANS V. ROBERTS. [CIIAP. VI. thing more, viz., for the produce of the land in a certain state at the time of deliver}'. The opinions of Heath and Rooke, JJ,, proceeded on the ground that the hops at the time of the contract did not exist as goods, wares, and merchandise. Chambre, J., was the onl}- judge who Intimated an opinion that the contract gave the vendee an interest in the land. He certainly' stated that the contract gave the vendee an interest in the produce of the whole of that part of the vendor's farm which consisted of hop-grounds. I concur in opinion with the three learned judges who thought in that case that the hops were not goods, wares, and merchandise, at the time of the contract ; but I do not agree with Lord Chief Justice Mansfield that there was no distinction be- tween the hops in that case and the growing turnips in the case of Emmerson v. Heelis, because I think that in the latter case the grow- ing turnips at the time of the contract were chattels. It has been insisted that the right to have the potatoes remain in the ground is an interest in the land ; but a paily entitled to emblements has tlie same right, and yei he is not hy virtue of that right considered to have any interest in the land. For the land goes to the heir, but the emble- ments go to the executor. In Tidd's Practice, 1039, it is laid down that under a fieri facias the sheriff may sell fructus industriales, as corn growing, which goes to the executor, or fixtures which may be removed b}- the tenant ; but not furnaces, or apples upon trees, which belong to the freehold and go to the heir. The distinction is between those tilings which go to the executor and those which go to the heir. The former ma}- be seized and sold under the fi. fa. ; the latter cannot. The former must therefore, in contemplation of law, be considered chattels. It appears therefore that, when it was necessary' at common law to distinguish between what was land and what was not, a grow- ing crop produced by the labor and expense of the occupier of lands was, as the representative of that labor and expense, considered an independent chattel, not going as the land goes, but in a different direction. Upon the same principle the purchaser of a growing crop, who b}' his contract acquired a right to have the crop continue in the land of the seller until it arrived at maturity, must, before tlie passing of the Statute of Frauds, have been considered to have had an interest not in the land, but in a chattel independent of tlie land ; and that being so, I cannot suppose that by the 4th section of that statute, which enacts that, unless certain provisions be complied with, no action shall be brought upon any contract or sale of any interest in or con- cerning lands, tenements, or hereditaments, the Legislature contem- plated, as tlie subject-matter of such contract or sale, that interest which passes from a vendor to a vendee by a sale of a growing crop of potatoes. The statute 56 G. 3, c. 50, indeed, is a legislative declaration that growing crops ma}' be seized and taken in execution under^?. fa. It prevents their being so seized in cases where the tenant is restrained b}- covenant in his lease from removing them off the premises. The case of Mayfield v. Wadsley, 3 B. & C. 357, also shows that where there is a SECT. II.] SMITH V. SURMAN. 803 sale of growing crops, distinct from any assignment or letting of the land, the crops do not constitute part of the inheritance or an}' interest in land, but are mere chattels, and may be recovered under a count for goods bargained and sold. Upon these grounds, I am of opinion that there was not in this case any contract or sal« of lands, tenements, or hereditaments, or any interest in or concerning them within the 4th section of the Statute of Frauds ; but that there was a contract for the sale of goods, wares, and merchandise within the meaning of the 17th section, though not to the amount which makes a written note or memorandum of the bargain necessary*. The rule for entering a nonsuit must therefore be discharged. Rule discharged.^ SMITH V. SURMAN. In the King's Bench, Easter Term, 1829. [Reported in 9 Barneivall ^ Cresswell, 561.] Declaration stated that the plaintiff on, &c., at, &c., at the request of the defendant bargained with the defendant to sell to him, and the defendant agreed to buy of the plaintiff, a large quantity of timber, to wit, 230 feet of timber, lying and being in and upon certain lands of the plaintiff, at a certain rate or price, to wit, at the rate or price of eighteen pence for each and every foot thereof, to be fetched, taken, and carried away by the defendant from the said lands of the plaintiff; and to be paid for by the defendant at the rate or price aforesaid witliin a reasonable time then next following ; and in consideration thereof, and also in consideration that the plaintiff at the like request of the defendant had undertaken and faithfully promised the defendant to permit and suffer the defendant to fetch, take, and carry away the said timber from the lands of the plaintiff, the defendant undertook and faithfully promised the plaintiff to fetch, take, and carry away the timber from the lands of the plaintiff, and to pay the plaintiff for the same at the rate aforesaid within a reasonable time. Breach, that the defendant refused to fetch and carry away the timber, or to pay for the same. There were counts for goods bargained and sold, and goods sold and delivered. Plea, the general issue. At the trial before Vaughan, B., at the summer assizes for the county of Worcester, 1828, it appeared that this action was brought to recover £17 3s. 6c?., the value of 229 feet of ash timber at Is. Od. per foot, which the plaintiff had agreed to sell to the defendant under the following circumstances : The plaintiff, the proprietor of a coppice, had given orders to have some ash-trees cut down ; and the defendant on the 7th of April, while the trees were in the course of being cut, and after two of them ^ HoLROTD and Littledale, JJ., delivered concurring opinions. 804 SMITH V. SURMAN. [CHAP. VI. had been actually felled, came to the coppice, and the plaintiff pointed out to him the trees, which were numbered. The defendant, after he had looked at t&em, said to one of the bystanders that he had made a good bargain, and told one of the persons who was cutting them, to tell the other men to cross cut them fair, and they were cut accordingly. The defendant afterwards said he had bought ten trees only, and that the reason he did not have them was that they were unsound. After the trees were cut they measured 229 feet 7 inches. The person who measured them afterwards met the defendant, who asked him if he had measured the timber at Mi'. Smith's, and receiving an answer in the affirmative, the defendant offered to sell him the butts (which he alleged he had bought of Mr. Smith) ; but this not being acceded to, the de- fendant asked him if he knew any person who wanted any butts, and then said he would go to Mr. Smith's and convert the tops into build- ing stuff. The defendant not having taken the timber away, the attorney of the plaintiff, by his direction, wrote the following letter to the defendant upon the subject : — Sir, — I am directed by Mr. Smith, of Norton Hall, to request you will forthwith pay for the ash timber which you purchased of him. The trees are numbered from one to fourteen, and contain, upon a very fair admeasurement, 229 feet 7 inches. The value at Is. 6d. per foot amounts to the sum of £17 3s. 6d. I understand your objection to complete your contract is on the ground that the timber is faulty and unsound ; but there is sufficient evidence to show that the same timber is very kind and superior, and a superior marketable article. I under- stand you object to the manner in which the trees were cross-cut, but there is also evidence to prove they were so cut b}' your direction. Unless the debt is immediately discharged, I have instructions to com- mence an action against you. In answer to this letter the defendant wrote to the plaintiff's attorney as follows : — Sir, — I have this moment received a letter from you respecting Mr. Smith's timber, which I bought of him at Is. 6d. per foot, to be sound and good, which I have some doubts whether it is or not, but he promised to make it so, and now denies it. When I saw him, he told me I sliould not have any without all, so we agreed on these terms, and I expected him to sell it to somebody else. Upon this evidence it was objected b}- the defendant's counsel that the contract was one for the sale of growing trees, and therefore for the sale of an interest in land, and he cited Scorell v. Boxall, 1 Younge & Jervis, 390 ; or assuming that it was a contract for the sale of goods, wares, and merchandises, the price being £10 and upwards, aud there being no note or memorandum of the contract in writing, the action was not maintainable. The learned judge directed the jury to find a ver- dict for the plaintiff for £17 3s. 6cl, but reserved liberty to the SECT. II.] SMITH V. SURMAN. 805 defendant to move to enter a nonsuit. A rule 7iisi having been obtained for this purpose, Eussell^ Serjt., and Shxitt, now showed cause. Jervis^ contra, was stopped by the court. LiTTLEDALE, J. The intention of the Legislature in making the statute in question appears by the preamble to have been to prevent fraudulent practices, commonl}' endeavored to be upheld by perjury and subornation of perjury' ; and for that purpose, in order to pre- vent them, it requires that the terms of contract shall be reduced to writing, or that some other requisite should be complied with to show manifestly that the contract was completed. I infer from the preamble that the Legislature intended to embrace within some of its sections the subject-matter of all contracts. The various contracts enumerated in the several sections of the statute seem also to warrant that inference. The first section enacts that parol leases shall have the effect of leases at will only. The second section excepts out of the first leases not ex- ceeding three years, where the rent reserved during the term is two- thirds of the improved value. The third section enacts that no leases, either of freehold or terms for years, shall be assigned, granted, or surrendered, except by deed or note in writing. The first three sections apply to contracts which, before the statute, were usually, though not necessarily, under seal. The 4th section applies to tliose parol promises or agreements which, before the statute, were probably in most instances reduced into writing, but which need not have been so. That section enacts that no action sliall be brought in such cases, unless the agreement, or some note or memorandum thereof, shall be reduced into writing. Tlie agreements therein described are a special promise bv an executor to answer damages out of his own estate ; or a special promise to answer for the debt of another person ; or an agree- ment made in consideration of marriage ; or any contract or sale of lands, tenements, or hereditaments, or any interest in or concerning them ; or any agreement not to be performed within the space of one year from the malving tliereof. Such contracts, from their very special nature and subject-matter, would probably have been reduced into writing. The statute requires that they shall be so. The 5th and Gth sections apply to devises of land. The 7th, 8th, 9th, 10th, and lltli, apply to declarations of trusts, and they are also required to be in writ- ing. The 12th section makes estates ;7e?- auter vie devisable. Tlie 13tli, 14th, loth, and 16th sections apply to judgments and executions. Tlie 17th section enacts that no contract for the sale of goods, wares, and merchandises, for the price of £10 or upwards, shall be allowed to be good, except the buyer shall accept part of the goods so sold and actually receive the same, or give somctliing in earnest to bind the bargain or in part payment, or that some note or memorandum of the bargain, in writing, be made and signed by the parties to be charged by such contract, or their agents thereunto properl}- authorized. Now, looking to the object of the statute as recited in the preamble, I collect 806 SMITH V. suKM.\N. [chap. VI. it was the intention of the Legislature to comprehend within the 4th and 17th sections the subject-matter of every parol contract, the uncer- tainty in the terms of which was likely to produce perjury or suborna- tion of perjury. A contract for mere work and labor is not specifically mentioned iu those clauses ; such a contract therefore may not be within the statute. But where the contracting parties contemplate 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 seller's bestowino- work and labor on his own raw materials : that is a case within the statute. It is sufficient if, at the time of the completion of the contract the subject-matter be goods, wares, and merchandise. I cannot assent to any case which has decided that such a contract is not within the statute. I think that the contract in this case was not a contract for the sale of lands, tenements, or hereditaments, or any interest in or concerning the same, within the meaning of the 4th section. Those words in that section relate to contracts (for the sale of the fee-simple, or of some less interest than the fee), which give the vendee a right to the use of the land for a specific period. If in this case the contract had been for the sale of the trees, with a specific liberty to the vendee to enter the land to cut them, I think it would not have given him an interest in the land within the meaning of the statute. The object of a party who sells timber is, not to give the vendee any interest in his land, but to pass to him an interest in the trees when they become goods and chattels. Here the vendor was to cut the trees himself. His intention clearly was, not to give the vendee any property in the trees until they were cut and ceased to be part of the freehold. I think therefore that there was not in this case any contract or sale of any interest in lands. Then assuming the contract not to be within the 4th section, the question arises, Whether it is within the 17th section? It was formerly held that where the goods, which were the subject-matter of the sale, were not to be delivered till a future day, as one of the three things required b}- that section of the statute, viz., a part acceptance, could not be complied with at the time of the contract, it was not a case within that section of the statute ; but later authorities ^ have estaljlished that such a contract, whether the goods are or are not to be delivered immediately, is within the statute. Those cases there- fore have established that if two of the things required by tlie 17th section can at the time of the contract be carried into effect, the case is within it, although one cannot be complied with. There is another class of cases, ^ where the article contracted for has not existed at the time of the contract, but is to be produced by work and labor to be bestowed by the vendor ; as where the contract was for a quan- 1 Rondeau v. Wyatt, 2 H. Bl. 67 ; Cooper v. Elston, 7 T. R. 14 ; Alexander v. Comber, 1 H. Bl. 21. 2 Towers v. Osborne, 1 Stra. 506 ; Groves r. Bnck, 3 M. & S. 1 79. SECT. II.] SMITH V. SURMAN. 807 tity of oak pins which had not been made, but were to be cut out of slabs, or for a chariot to be built. In those cases the contract has been considered rather as a contract for work and labor than for the sale of goods, wares, and merchandise, and not within the statute. The impression on my mind however is, that wherever the subject-matter at the time of the completion of the contract is goods, wares, and merchandise, this section of the statute attaches upon it, although it has become goods, wares, and merchandise, between the time of mak- ing and completing the contract, either by one of the parties having bestowed his work and labor upon his own materials, or by his having converted a portion of his freehold into goods and chattels. The pro- visions of the statute are more necessary in cases where the contract is to be executed at a future period, than where it is to be executed immediately. From the uncertaintj' in the terras of bargains to be completed at a future period, disputes are more likel}' to arise, and the consequent perjury which it was the object of the statute to prevent. In the case of the chariot, for instance, a dispute might at any time before its completion have arisen respecting the quality of the materials of which it was to be composed, or the color which it was to be painted, and in those respects it would have been necessary to have recourse to verbal testimou}' to prove the terms of the contract, which it was the very object of the statute to prevent. I am therefore of opinion that the contract in this case was a contract for the sale of goods, wares, and merchandise, within the 17th section. I think also that there is no sufficient note in writing of the contract. The plaintiff's attorney in his letter speaks of it as a contract for the sale of so much timber, at so much per foot, without reference to quality. The defendant in his letter states that it was a contract, with a condi- tion that the timber should be sound and good, though the plaintiff had subsequentl}' denied that that was one of the terms of the contract. I think also, for the reasons stated by my brother Bayle}', that there was no part-acceptance of the goods to satisfy the statute.^ Rule absolute."^ 1 Bati.ey and Park, J,J., delivered concurring opinions. 2 In Kodwell v. Phillips, 9 M. & W. 501, 505, Lord Abinger, C. B., referring to the foregoing case, said : " Undoubtedly there is a case in which it appears that a contract to sell timber growing was not held to convey any interest in the laud, but that was where the parties contracted to sell the timber at so much per foot, and from the nature of that contract it must be taken to have been the same as if the parties had contracted for the sale of timber already felled." 808 MARSHALL V. GREEN. [CHAP. VL SAINSBURY V. MATTHEWS. In the Exchequer, Michaelmas Term, 1838. [Reported in 4 Meeson c^- Welsh i/, 343.] This was an action of assumpsit to recover damages for tlie breach of a contract by the defendant to sell and deliver to the plaintiff a cer- tain quantity of potatoes.^ At the trial before Coltman, J., at the last Wiltshire assizes, it was proved that the plaintiff and defendant being together at an inn at Erlstoke, in June, 1836, the defendant said he had got 100 lugs of pota- toes, and he would sell them at two shillings a sack. The plaintiff said be would have them ; and it was agreed that the plaintiff was to have them at that price at digging-up time, and that he should find diggers. When the potatoes were ripe, the plaintiff accordinglj^ sent diggers to take them up ; but the defendant refused to permit them to do so. The jury having found for the plaintiff, dam-ages £5 IDs., Croioder now moved, pursuant to leave reserved by the learned judge, to enter a nonsuit. Lord Abinger, C. B. I think this was not a contract giving an interest in the land ; it is only a contract to sell potatoes at so much a sack on a future da}', to be taken up at the expense of the vendee. He must give notice to the defendant for that purpose, and cannot come upon the land when he pleases. Parke, B. This is a contract for the sale of goods and chattels at a future da}', the produce of certain land, and to be taken away at a cer- tain time. It gives no right to the land : if a tempest had destroyed the crop in the mean time, and there had been none to deliver, the loss would clearly have fallen upon the defendant. The case is stronger than that of Evans v. Roberts, because here there is only a stipulation to pa}' so much per sack for the potatoes when delivered ; it is only a contract for goods to be sold and delivered. In that case all tlie authorities were reviewed, and the result of them clearly laid down. GuRNEY, B., concurred. Bule refused. MARSHALL v. GREEN. In the Cojimon Pleas, November 6, 1875. [Reported in Law Reports, 1 Common Pleas Division, 35.] Lord Coleridge, C. J. This is an action^ in respect of the entry ')}• the defendant upon certain land in the occupation of the plaintiff's 1 Only so much of thi.s case is given as relates to tlie question whether the suhject i)f the snle was goods, wares, or merchandise, within the meaning of the Statute of Frauds. ^ The declaration contained : 1st count for trespass to land and cutting down certain trees of the plaintiff; 2nd, trover; 3rd, for an injury to the plaintiff's reversion. SECT. II.] MARSHALL V. GREEN. 809 tenant, and the cutting down of certain trees. The facts were these. The plaintiff was the owner in fee of a copyhold tenement on which certain timber trees were growing. The tenement was under lease, but the custom of the manor reserved the trees upon the tenement leased to the owner in fee of the copyhold tenement. The plaintiff had communicated with the defendant, a Umber merchant, on the subject of his wish to sell the trees ; but some question had arisen as to the number of the trees, and it was agreed that the plaintiff and defendant should go over the land together to inspect the trees. On the 27th of February they went over the land for that purpose, and there was then a parol sale of twenty-two trees, at the price of £26, and it was arranged that the trees should be "got away as soon as possible." The defendant's servants entered, and on the 2d, 3d, and 4th of March, they cut down the trees. On the 2d of March, after six trees had been cut down, the plaintiff wrote countermanding the sale. The defendant had sold the tops and stumps before receipt of the letter of countermand ; but, though sold before, they were not taken away until after such letter was received. If there was a valid contract for the sale of the trees, the plaintiff must fail ; the trees had been sold, and the property had passed ; the land was not in the plaintiff's possession, but his tenant's, and the defendant had a perfect right to do what he did. It is not denied that there was a verbal contract, and the ques- tion therefore is whether this was a contract which required to be in writing under the Statute of Frauds. If so, the defendant was in the wrong, because there was no such contract. The first question is whether this was a contract within the 4th section, as being a "con- tract or sale of lands, tenements, or hereditaments, or any interest in or concerning them." These words have given rise to a great deal of discussion, and very high authorities have said that it is impossible to reconcile all the decisions on the subject. If the matter were res Integra, I should be inclined to think that there was much to be said for Littledale, J.'s view, that the words of the statute were never meant to apply to such a matter as this at all, but only referred to such interests as are known to conveyancers. It is, however, too late now to maintain this view, inasmuch as there are a great number of decisions which proceed on the opposite view. It is clear on the decisions that there are certain natural growths which, under certain circumstances, have been held to be within the words of the section, and a contract with respect to which must, therefore, be in writing. The question then is, what the rule is to be. The matter has been much discussed, and for my part I despair of laying down any rule which can stand the test of every conceivable case. If it is said that there is an interest in land within the section when the sale is of something which, before it is taken away, is to derive benefit from the land, and to become altered b}- virtue of what it draws from the soil, the rule is an intelligible one, but one which it is almost impossible to apply with absolute strictness. The effect of such a rule, if strictly 810 MAKSHALL V. GREEN. [CHAP. VI. applied, would vary at different times of the year. If tbe sale were in the spring, and the removal of the thing sold were to be postponed but for two or three days, it would not, at its severance, in strictness, be in the same state as it was at the time of the sale. On the other hand, in winter, when the sap is out of the tree, and it is standing, as it were, dead for the time being, there would be no appreciable change. It is almost impossible to say that the rule can be that, wherever anything, however small, is to pass into that which grows on the land, out of the land, between the sale and the reduction into possession, the contract is within the section. I find the following statement of the law with regard to this subject, which must be taken to have received the sanction of that learned judge, Sir Edward Vaughan Williams, in the notes in the last edition of Williams' Saunders, upon the case of Duppa v. Mayo, p. 395 : "The principle of these decisions appears to be this, that wherever at the time of the contract it is contemplated that the purchaser should derive a benefit from the further growth of the thing sold from further vegeta- tion and from the nutriment to be afforded by the land, the contract is to be considered as for an interest in land ; but where the process of vegetation is over, or the parties agree that the thing sold shall be immediately withdrawn from the land, the land is to be considered as a mere warehouse of the thing sold, and the contract is for goods. This doctrine has been materially qualified by later decisions, and it appears to be now settled that, with respect to emblements or fnictus industriales^ «fec., the corn and other growth of the earth which are produced not spontaneously, but by labor and industry, a contract for the sale of them while growing, whether they are in a state of maturit}' or whether they have still to derive nutriment from the land in order to bring them to that state, is not a contract for the sale of an}' interest in land, but merely for the sale of goods." The propositions so laid down, as applied to the present case, seem to afford a very clear and intelligible rule. Planted trees cannot in strictness be said to be pro- duced spontaneousl}', yet the labor employed in their planting bears so small a proportion to their natural growth, that the}^ cannot be con- sidered asfructus industriales ; but treating them as not hemg fructus inclustriales, the proposition is, that where the thing sold is to derive no benefit from the land, and is to be taken away immediately, the contract is not for an interest in land. Here the contract was that the trees should be got away as soon as possible, and they were almost immediately cut down. Apart from any decisions on the subject, and as a matter of common-sense, it would seem obvious that a sale of twenty-two trees, to be taken awa}' immediately, was not a sale of an interest in land, but merely of so much timber. There do not seem to be any decisions which prevent our deciding in conformit}' with the common-sense of the matter. On the contrarv, there is a case of Smith v. Surraan, 9 B. & C. 561, in which the Court of Queen's Bench held, under circumstances vcrj' like those of the SECT. II.] MARSHALL V. GREEN. 811 present case, that there was no contract for an interest in land. The only distinction that I can see between that and the present case is, that there the trees were to be cut by the vendor ; but Littledale, J., held that, "if in that case the contract had been for the sale of the trees, with a specific liberty to the vendee to enter the land to cut them, it would not have given him an interest in land, within the meaning of the statute." This decision has never been questioned, and has been adopted in subsequent decisions. It seems to me, there- fore, that both common-sense and authority combine to show that this was not a contract for an interest in land, within the section. The remaining question is, whether this contract was within the 17th section. This depends on whether there was here an acceptance and actual receipt of part of the goods. There have been many decisions on the question, what amounts to such an acceptance and receipt; it was very early determined that an actual manual receipt of the article sold was not necessary, but that a constructive receipt would do. Here six of the trees were cut down before the sale was countermanded, and at a time when it must be taken that that was done with the assent of the seller, and portions were sold. What more could have been done short of actually removing the trees? These were bulky trees, that a man could not carry away like a small article. If anything short of actual manual possession could be sufficient, all was done that could be done. The defendant immediately cuts down the trees, and converts them into chattels, and deals with them as owner by selling the tops and stumps. In the absence of any decision on tlie subject, I should have said that, if it be once admitted that anything short of actual manual possession could be a sufficient acceptance and receipt, there was amply sufficient to show such an acceptance and receipt here. But we are not without authority on the subject. There have been repeated decisions that, where anything has been done on the part of the vendee, under such a contract as this, to the whole or part of the goods, indicating an intention to deal with the subject-matter as owner in possession, and he is allowed by the vendor so to deal with it, that amounts to an acceptance and receipt within the statute. It has been held, with regard to bulky things, that the delivery of the indicia of title was sufficient. When the purcliaser had marked the goods, and left them so marked on the vendor's premises, it was held that there was a sufficient acceptance and receipt. The case of Chaplin v.. Rogers, 1 East, 192, seems to me to be a distinct authorit}- for the view that there was an acceptance and receipt here, the words of the section having received all the fulfilment the sul)ject- matter was capable of I do not rely on the circumstance that the land was in the possession of the plaintiff's tenant. It seems to me that, apart from that circumstance, and treating the land as being the ven- dor's, the case is ciear. The result is, that the plaintiff fails on both points, and the rule must be discharged. Hide discharged} 1 Bre7t and GRP'-ii;, JJ., delivered concurring ojiinioiis. 812 MARSHALL V. GREEN. [CHAP. VI. XoTE —111 Lavery y. rursell, 39 Ch. D. 508, Chitty, J., held that a contract to sell building materials iu a standing building to be removed by the purchaser within two months, was a contract for the sale of an interest in or concerning laud within sec- tion 4 of the iStatute of Frauds. In the course of his opinion, he said : — "Now- tlie authority upon wliich the plaintiff relied is Marshall v. Green, 1 C. P. D. 35. In that case tlie subject-matter of tlie contract was standing trees, fit to be cut as timber. The intention of the parties unquestionably was to sell and buy as timber. There was no stipulation there in regard to possession, but it was a part of the terms of the contract that the purchaser should cut, and of course part of the terms of the contract that he should enter for that purpose. On the facts it appeared that six trees had been cut down by the defendant, who was sued for the wrongful acts of cutting down the trees. The substantial question was wliether the defendant was a trespasser and wrongdoer in cutting the trees, and that depended upon whether he had an en- forceable contract to cut the trees. He had cut six trees, and then a notice was given to him by the owner of the trees to cut no more. After that he entered and still cut, and the question was as to his liability in respect of those trees. Sir Arthur Watson, iu arguing this case, spoke of a revocable license, but tlie Common Pleas Division appeared to consider that this was not a revocable license, because they held that he was justified in cutting the trees, notwithstanding the notice. Then the trees being standing trees, to be cut by the purchaser, the court held tliat it was not within the 4th section. Of course I am bound by the decision itself, and I am bound by any principle of law that is necessary to the decision, but I am not bound by the decision beyond that. Now the court appears to have considered that there was no interest in the land. I agree that it was a point, if I may say so with great respect, that required a good deal of attention, whether a standing tree is a chattel, or can be made, by any acts of the parties, a chattel. It is a hereditament at the time when the contract is made. It is just as much a hereditament, in point of law, as a house which is standing on the land, and just as much so as the mines wliich are underneath. I only speak now as a real property lawyer. I am bound, of course, by the English law, to say that a tree is not a chattel. Indeed, if a man were indicted for larceny of a tree, the indictment would be quashed. I feel a little difficulty in following that reasoning, wliich, for the purposes of sect. 4, through the intention of the parties, changes the nature of the property from realty to personalty, but I make these observations merely for the pur- pose of endeavoring to get at the principle on which the decision turns, and not for the purpose of making any unnecessary comments on what was said. The Lord Chief Justice says, and I thoroughly agree with him, that it is difficult, if not impossible, to reconcile all the authorities in these matters. lie mentions the cases which referred to the fructus nalurales and the yructus iiidustn'ales, which have no doubt given rise to a considerable difference of opinion, and he quotes the well-known passage in AVilliams' Saunders, Vol. I. p. 395 (Duppa v. Mayo), where it was said that where the parties agree that the thing sold shall be immediately withdrawn from the land, the land is to be considered as a mere warehouse of the thing sold, the contract is for goods. I pause for one moment to say that I am always myself afraid, in dealing with proposi- tions of law, to use metaphors. They are very often very convenient, but if pressed too far they often lead to erroneous conclusions. Taking this statement, could the land in the case before me be considered as the warehouse for the building'? Why, certainly not. Such a contention as that, on the mere statement of it, would be one which could not be permitted in a court of justice. I say that merely to follow the reasoning, but when the case is examined as a whole, it will be seen that the judgment turned upon this, that they considered that, as the trees were to T)e cut down as soon as possible, and were almost immediately cut down, the thing sold was a chattel. A point was taken with reference to the statement by Lord Justice Brett, 1 C. P. D. 42 : ' With respect to the first point, when the subject-matter of the contract is some- thing affixed to land, the question is whether the jontract is intended to be for the purchase of the thing affixed only, or of an interest in the land as well as the tiling affixed.' I think upon that, that the Lord Justice did not intend to draw any such distinction as to the word commented on — that the tree was affixed, or was a fixture. SECT. II.] WHITMARSH V. WALKER. 8l3 I can see nothing in the argument founded on that proposition. The true basis of his judgment is, I think, to be found in the same page, where he says, 'the contract is not for au interest in the land, but relates solely to the thing sold itself.' " Though that case may be open hereafter to further consideration, of course I can not reconsider it, nor can I differ from it. It is evident that if that view is right, which I will assume it to be, a line must be drawn somewhere, because, if this prin- ciple were carried to the full extent, there being no distinction between the timber on the land, in point of law, and the mines, then it would have to be said, following out what the plaintiff says was the principle of this decision, that a contract for all the coal or minerals under a man's land, with a license to enter and get it, is not within sect. 4. Some explanation why that should be was attempted to be given by plain- tiff's counsel, but without success. The answer perhaps is, that courts of justice ought not to be puzzled by such old scholastic questions as to where a horse's tail begins and where it ceases. You are obliged to say, ' This is a horse's tail,' at some time. What I say is, that I must draw the line at this case, because on the facts it is quite different, or materially different, from Marshall v. Green, 1 C. P. D. 35, and I leave that case as it stands on its own footing, and must hold that this case comes within the 4th section." Compare Hallen v. Ruuder, 1 C. M. & R. 267, and Lee v. Gaskell, 1 Q. B. D. 700, in which it was held that a sale of fixtures by the tenant's trustee in bankruptcy to the landlord was not within either the 4th or the 17th section of the statute. SAMUEL WHITMARSH v. HEZEKIAH AVALKER, Jr. Supreme Judicial Court of Massachusetts, September Term, 1840. [Reported in 1 Metcalf, 313.] Wilde, J. This action is founded on a parol agreement, whereby the defendant agreed to sell to the plaintiff two thousand mulberry- trees at a stipulated price ; the trees at the time of the agreement being growing in the close of the defendant. It was proved at the trial that the plaintiff paid the defendant in hand the sum of ten dol- lars in part payment of the price thereof, and promised to pay the residue of the price on the delivery of the trees, which the defendant promised to deliver on demand, but which promise on his part he afterwards refused to perform. And the defence is that the contract was for the sale of an interest in land, and therefore void by the Rev. Sts. c. 74, § 1. In support of the defence it has been argued that trees growing and rooted in the soil appertain to the realty, and that the contract in question was for the sale of trees rooted and growing in the soil of the defendant at the time of the sale. On the part of the plaintiff it was contended that the trees contracted for were raised for sale and trans- plantation ; and like fruit-trees, shrubs, and plants, rooted in the soil of a nursery garden, are not within tlie general rule, but are to be consid- ered as personal chattels. This question was discussed and considered in INIiller v. Baker, 1 Met. 27, and we do not deem it necessary to reconsider it in reference to the present case. We do not consider the agreement set forth in the declaration and proved at the trial as a 814 WillTMARSH V. WALKER. [CHAP. VI. contract of sale consummated at the time of the agreement ; for the delivery was postponed to a future time, and the defendant was not bound to complete the contract on his part, unless the plaintiff should be ready and willing to complete the payment of the stipulated price. Sainsbury V. Matthews, 4 Mees. & Welsh. 347. Independently of the Statute of Frauds, and considering the agreement as valid and binding, no property in the trees vested thereby in the plaintiff. The delivery of them and the payment of the price were to be simulta- neous acts. The plaintiff cannot maintain an action for the non- delivery without proving that he offered and was ready to complete the payment of the price ; nor could the defendant maintain an action for the price without proving that he was ready and offered to deliver the trees. According to the true construction of the contract, as we understand it, the defendant undertook to sell the trees at a stipulated price, to sever them from the soil, or to permit the plaintiff to sever them, and to deliver them to him on demand ; he at the same time paying the defendant the residue of the price. And it is immaterial whether the severance was to be made by the plaintiff or the defend- ant. For a license for the plaintiff to enter and remove the trees would pass no interest in the land, and would, without writing, be valid, notwithstanding the Statute of Frauds. This subject was fully considered in the case of Tayler v. Waters, 7 Taunt. 374 ; and it was held tliat a beneficial license, to be exercised upon land, may be granted without deed and without writing ; and that such a license, granted for a valuable consideration and acted upon, cannot be countermanded. The subject has also been ably and elaborately discussed by Chief Justice Savage in the case of Mumford V. AVhitney, 15 Wend. 380, in which all the authorities are reviewed ; and we concur in the doctrine as therein laid down, namely, that a permanent interest in land can be transferred only by writing, but that a license to enter upon the land of another and do a particular act or a series of acts, without transferring any interest in the land, is valid, though not in writing. And such is the license on which the plaintiff relies in the present case. Chancellor Kent in his Commentaries, vol. iii. p. 452, 3d ed., very justl}- remarks that "the distinction between a privilege or easement carrying an interest in the land, and requiring a writing within the Statute of Frauds to support it, and a license which may be by parol, is quite subtile, and it becomes difficult in some of the cases to discern a substantial difference between them." But no such difficulty occurs in the present case. The plaintiff claims no right to enter on the defendant's land by virtue of the license. It is admitted that he had a legal right to revoke his license. But if he exercised his legal right in violation of his agreement, to the plaintiff^s prejudice, he is responsible in damages. We think it therefore clear that, giving to the contract the construction already stated, the plaintiff is entitled to recover. If for a valuable consideration the defendant contracted to sell the trees SECT. II.] GREEN V. ARMSTRONG. 815 and to deliver them at a future time, he was bound to sever them from the soil himself, or to permit the plaintiff to do it ; and if he refused to comply with his agreement, he is responsible in damages. Judgment on the verdict. GREEN V. ARMSTRONG. New York Supreme Court, October, 1845. [Reported in 1 Denio, 552.] Beardsley, J. A verbal contract was made between these parties, bj- which the defendant agreed to sell certain trees then standing and growing on his land, to the plaintiff, with liberty to cut and remove the same at an}" time within twentj- years from the making of the contract. A part of the trees were cut and removed under this agreement, but the defendant then refused to permit an}- more to be taken, and for this the plaintiff brought his action in the justice's court, where a judgment was rendered in liis favor. On the trial of the cause the defendant objected to proof of such parol contract, but the objection was over- ruled. The judgment was removed b}' certiorari to the Court of Com- mon Pleas of Oneida count}", and was reversed by that court, on the ground, as the record states, that the contract, not being in writing, was void by the Statute of Frauds. As the declaration stated that the contract was by parol and not in writing, and the defendant pleaded instead of demurring, it is now urged on behalf of the plaintiff in error, that the defendant was pre- cluded from objecting, on the trial of the cause before the justice, or in the Court of Common Pleas, to proof of a parol contract, or that such contract was void. It is insisted the defendant should have demurred, if a verbal contract like this was invalid, and that by pleading to the declaration, its sufficiency, and consequently the validit}- of the con- tract as stated, were admitted; and if, in truth, the contract was for this reason void, the defendant, having failed to make the objection at the proper time and in an appropriate manner, is now remediless. If the action had been pending in this court, or in a Court of Common Pleas, the principles stated would, to a certain extent, have been ap- plical)le ; for the objection that the contract was by parol and not in writing, could not have l>een made on the trial of the issue joined. But a verdict on the issue would not liave concluded the defendant, for he might still move in arrest of judgment, and thus raise the ques- tion as to the validity of the contract declared on. A motion in arrest, however, cannot be made in the justice's court, and where issue has been joined, as in tliis case, if the defendant cannot, on the trial or on certiorari^ oliject that the contract is void, he is without any redress whatever. But pleading to a declaration, when the party might have demurred, cannot be allowed to have any such conclusive effect upon 816 GREEN V. ARMSTRONG. [CIIAP. VI. the rights of the pai't}- : it cannot make a void contract valid, or at all change the real rights of the litigant parties. The orderly and formal mode of making the objection would be by demurrer or motion in arrest ; but this is only a matter of form. And as it was too late to demur, and a motion in arrest could not be made, I have no ditHculty in saying the objection was properly made on the trial, and in the Common Pleas, and it must now be determined by this court. The Revised Statutes declare that no "interest in lands " shall be created, unless by deed or conveyance in writing ; and that every con- tract for the sale of " any interest in lands" shall be void unless in writing. 2 11. S. 134, §§ 6, 8. Certain exceptions and qualifications to these enactments are contained in the sections referred to, but none which touch the question now before the court : and so far as respects this question the former statute of New York, and the English statute of 29 Charles 2, ch. 3, contain similar provisions. 1 R. L. of 1813, p. 78 ; Chit, on Cont. 299. The i)recise question in this case is, whether an agreement for the. sale of growing trees, with a right to enter on the land at a future time and remove them, is a contract for the sale of an interest in land. If it is, it must follow that the one declared on in this case, not being in writing, was invalid, and the judgment of the Common Pleas, revers- ing that of the justice, was correct and must be affirmed. And in the outset I must observe, that this question has not, to my knowledge, been decided in this State. It has, however, arisen in the English courts, and in some of those of our sister States ; but their decisions are contradictory, and the views of individual judges wholly irreconcilalile with each other. Greenleafs Ev. 2d ed. § 271, aud notes; Chit, on Cont. 299 to 302; 4 Kent's Com. 5th ed. 450, 1. "VVe are, therefore, as it seems to me, at full liberty to adopt a broad principle, if one can be found, which will determine this precise ques- tion in a manner which our judgments shall approve, and especially if it be equally applicable to other and analogous cases. By the statute, a contract for the sale of " any interest in lands" is void unless in writing. The word " land " is comprehensive in its import, and includes many things besides the earth we tread on, as waters, grass, stones, buildings, fences, trees, and the like ; for all these may be conveyed by the general designation of land. 1 Shep. Touch, by Preston, 91 ; 1 Inst. 4; 1 Preston on Estates, 8; 2 Black. Com. 17, 18 ; 1 R. S. 387, § 2 ; 2 id. 137, § 6. Standing trees are therefore part and parcel of the land in which they are rooted, and as such are real property. They pass to the heir b}- descent as part of the inheri- tance, and not, as personal chattels do, to the executor or adminis- trator. Toller's Law of Executors, 193, 4, 5 ; 2 Black. Com. by Chitty, 122 note; Rob. on Frauds, 365, 6; Richard Liford's case, 11 Rep. 46; Com. Dig. Biens, (H). And being strictly real property, they cannot be sold on an execution against chattels onl}'. Scorell v. Boxall, 1 Younge & Jer. 396 ; Evans v. Roberts, 5 Barn. & Cress. 829. SECT. II.] GEEEN V. ARMSTRONG. 817 It is otherwise with growing crops, as wheat and corn, the annual produce of labor and cultivation of the earth ; for these are personal chattels, and pass to those entitled to the personal estate, and not to the heir. Toller, 150, 194; 2 Black. Com. 404. They may also be sold on execution like other personal chattels. Whipple v. Foot, 2 John. 418 ; Jones v. Flint, 10 Adol. & Ellis, 753 ; Peacock v. Pur- vis, 2 Brod. & Bing. 362; Hartwell v. Bissell, 17 John. 128. These principles suggest the proper distinction. An interest in personal chattels may be created without a deed or convej'ance in writing, and a contract for their sale may be valid although b}- parol. But an interest in that which is land, can onl^' be created bj- deed or written conveyance : and no contract for the sale of such an interest is valid unless in writing. It is not material and does not affect the principle, that the subject of the sale will be personal propert}- when transferred to the purchaser. If, when sold, it is, in the hands of the seller, a part of the land itself, the contract is within the statute. These trees were part of the defendant's land and not his personal chattels. The contract for their sale and transfer, being hy parol, was therefore void. The opinion of the court in the case of Dunne v. Ferguson, 1 Hayes (Irish) R. 542, contains one of the best illustrations of this question. That case is thus stated in Stephens' N. P. (1971.) "The facts of the case were, that in October, 1830, the defendant sold to the plaintiff a crop of turnips, which he had sown a short time previously, for a sum less than ten pounds. In February, 1831, and previously-, while the turnips were still in the ground, the defendant severed and carried away considerable quantities of them, which he converted to his own use. No note in writing was made of the bargain. It was contended for the defendant, that the action of trover did not lie for things an- nexed to the freehold, and that the contract was of no validity for want of a note or memorandum in wanting pursuant to the Statute of Frauds. Upon the foregoing facts Chief Baron Jo}' observed (Barons Smith, Pennefather and Foster, concurring), "The general question for our decision is, whether there has been a contract for an interest concerning lands, within the second section of the Statute of Frauds? or whether it merel}- concerned goods and chattels? And that ques- tion resolves itself into another, whether or not a growing crop is goods and chattels? In one case it has been held, that a contract for potatoes did not require a note in writing, because the potatoes were ripe ; and in another case, the distinction turned upon the hand that was to dig them, so that if dug by A. B. they were potatoes, and if by C. D. tliey were an interest in lands. Such a course always involves the judge in perplexity, and the case in obscurity. Another criterion must, therefore, be had recourse to ; and, fortunatel}', the later cases have rested the matter on a more rational and solid foundation. At common law, growing crops were uniformly held to be goods ; and they were subject to all the leading consequences of being goods, as 818 iriRTH V. GRAHAM. [CIIAP. VI. seizure in execution, etc. The Statute of Frauds takes things as it finds them, and provides for lands and goods according as they were so esteemed before its enactment. In this way the question may be satisfactorily decided. If, before the statute, a growing crop has been held to be an interest in lands, it would come within the second section of the act, but if it were only goods and chattels, then it came within the thirteenth section. On this, the only rational ground, the cases of Evans v. Roberts, 5 Barn. & Cress. 829 ; Smith v. Surman, 9 id. 561 ; and Scorell v. Boxall, 1 Younge & Jer. 396, have been de- cided. And as we think that growing crops have all the consequences of chattels, and are like tliem liable to be taken in execution, we must rule the points saved for the plaintiff." Various other decisions have proceeded on the same principle, although it has nowhere been stated and illustrated with the same clearness and force as in the opinion of Chief Baron Joy. The following cases may be cited to show that growing crops of grain and vegetables, /r?8, there was no actual delivery. The defendant cannot resort to the Statute of Frauds, after he has by his own act acknowledged the purcha.se. Searle v. Kceves, 2 Esp. N. P. Cas. 598. Ilullock, in support of his rule, denied that there was in this case any part payment or any constructive delivery. GiDBS, C. J., interposing, relieved him. The court do not go all the 840 TEMPEST V. FITZGERALD. [CHAP. VL way with tiie defendant on all bis points ; but tbe court is embarrassed by observing that it was not left to the jury to find whether there was any deliver}' or not ; and on the first trial of the case of Chaplin v. Rogers the jury found there was an acceptance of the ha}', and on the second trial they found that it had been delivered ; and we are far from saying that we do not coincide with the learned Baron who tried the cause in his direction, but we think it ought to be left to the jury to find whether this was or was not a delivery ; therefore there must be a new trial. This is ver}' different from the case of the haystack, for there nothing more could be done to confer a possession. Dallas, J. The only question here is, whether something else re- mained to be done ; upon tliat point I have an opinion, but it is unnecessary here to disclose it, and I carefully abstain from stating what it is. The court, altering the form of the rule, made it absolute for a new trial.^ TEMPEST V. FITZGERALD. In the King's Bench, June 12, 1820. [Reported in 3 Darnewall Sf Alderson, 680.J Assumpsit for the price of a horse. Declaration contained counts for horses sold and delivered, bargained and sold, &c. Plea, general issue. At the trial before Park, J., at the last assizes for the county of Lancaster, the following facts were proved: In August, 1817, the de- fendant, then on a visit at the plaintiff's house, agreed to purchase a horse from him at the price of fort3'-five guineas, and to fetch it away about the 22d September as he went to Doncaster races. The parties understood it to be a ready-money bargain. The defendant said he wanted it for hunting, and tlie plaintiff proposed to put it in a course of physic during his absence. The defendant soon after quitted the plain- tiff's house, and returned on the 20th September. He then ordered the horse to be taken out of the stable; he and his servant mounted, gal- loped, and leaped the horse, and after thej' had done so his servant cleaned him, and the defendant himself gave directions that a roller should be taken off and a fresh one put on, and that a strap should be l)ut upon his neck, which was consequently done ; he then asked the l)laintiff's son if he would keep it for another week; he said that he would do it to oblige him. The defendant then said that he would call 1 In Blackburn on Sale, (1st ed.) p. 3-3, after stating Chaplin v. Rogers, 1 East, 195, n. ; Anderson v. Scott, 1 Camp. 235 n. ; Hodgson v. LeBret, 1 Camp. 233; Elmore r. Stone, 1 Taunt. 458 and Hlenkinsop v. Clayton, 7 Taunt. 597, the author says: "In all tliese cases there seeins to have been ample evidence of an acceptance of the goods but scanty evidence of any actual receipt, if by that is to be understood a taking of pos- session; indeed, in Blenkinsop v. Clayton, as reported, there seems to have been none. After the decision of that last case, the current of authority set the other way." SECT, v.] TEMPEST V. FITZGERALD. 841 and pay for the horse when he returned from the Doncaster races, about the 26th or 27th September. He told plaintiff's groom that the horse ought to be galloped more, and that it was not then in a condition for hunting. The defendant returned on the 27th with the intention to take it awa}-, but the horse having died on the 26th September he re- fused to pay the price. Upon these facts it was contended by the de- fendant's counsel that there had been no acceptance of the horse bj' him, so as to take the case out of the Statute of Frauds. The learned judge was of opinion that if the acts done by the defendant on the 20th Sep- tember were to be considered as acts of ownership, that there was a sufficient acceptance ; and he left it to the jury to say whether the rid- ing of the horse on that day was by way of trial, or whether the defend- ant was then exercising an act of ownership ; and whether the directions then given were by way of advice or as owner. If thej' thought that he was then exercising acts of ownership, then the}' were to find for the plaintiff; if otherwise, for the defendant. The jury found a verdict for the plaintiff. A rule nisi having been obtained for a new trial in last Easter term, Scarlett and Holt now showed cause. Cross, Serjt., and Milne?', contra. Abbott, C. J. The Statute of Frauds was made for wise and bene- ficial purposes, and ought to receive such a construction as will best accord with the plain and obvious meaning of the Legislature. By the 17th section it is enacted [quoting the section]. Now in this case there was not any earnest given, or any part pa^'ment, or any note or memo- randum in writing. The question therefore is, whether the buj-er had accepted part of the goods sold and actuallj' received the same. Now the word "accepted" imports not merely that there should be a deliv- eiT by tlie seller, but that each part}' should do something by which the bargain should be bound. I do not mean, however, to say that if the buyer were to take away the goods without the assent of the seller, that would not be sufficient to bind him.^ In tiiis case payment of the price was to be an act concurrent with the deliver}' of the horse ; at any rate there is nothing to show that either party understood tliat the one was to precede tlie other. In the first instance, therefore, this was a mere contract between the parties. It is urged, however, that there was evi- dence for the jury to find that the defendant had exercised acts of owner- ship as to the horse on the 20th September. It appears from the learned judge's report that on that day he came to the plaintiff's house, tliat he and his servant then rode the horse, and that he gave some directions as to its future treatment, and it is urged that these acts might be con- sidered acts of ownership. I am of opinion, however, that the defend- ant had no riglit of [)roperty in the horse until the [)ricc was pnid ; he could not then exercise any right of ownerslii[). If lie had at tliat time rode away with the horse the plaintiff might have maintained trover. The distinction between this case and that of lilenkinsop v. Clayton is, 1 But see Baker v. Ciiyler, 12 Barb. 607. g42 CAKTER V. TOUSSAINT. [CHAP. VL that there the contract was not for ready money, but the horse was to be delivered within an hour, and the defendant treated it as his own by offering it for sale ; here the express contract is for ready money, and the payment of the price is an act concurrent with the delivery of the horse. I think, therefore, that the rule for a new trial must be made absolute. -RwZe absolute.'^ CARTER AND Another v. TOUSSAINT. In the King's Bench, June 14, 1822. [Reported in 5 Barnewall Sf Aldersoit, 855.] Assumpsit for the price of a horse, with the usual money counts. Plea, general issue. At the trial at the Middlesex sittings after last Hilary term, before Abbott, C. J., it appeared that the plaintiffs, who were farriers, sold to the defendant a race-horse by a verbal contract for £30. The horse at the time of the sale required to be fired, which was done with the approbation of the defendant and in his presence ; and it was agreed that the horse should be kept by the plaintiffs for twenty days without any charge made for it. At the expiration of the twenty days the horse was, by the defendant's directions, taken by a servant of the plaintiffs to Kimpton Park, for the purpose of being turned out to grass there. It was there entered in the name of one of the plaintiffs, which was also done by the direction of the defendant, who was anxious that it might not be known that he kept a race-horse. No time was specified in the bargain for the payment of the price. The defendant afterwards refused to take the horse. The jury, under the direction of the Lord Chief Justice, found a verdict for the plaintiffs. Scarlett in last Easter term obtained a rule nisi for entering a nonsuit on the ground reserved at the trial, that there was not a sufficient acceptance by the defendant to take the case out of the 17th section of the Statute of Frauds. Jlari'i/at and HaioJcins showed cause. Scarlett and Lawes, contra. Abbott, C. J. In this case it appears there was a verbal bargain for the horse at £30, for the payment of which no time was fixed. The seller therefore was not compellable to deliver it until the price was paid. In Elmore v. Stone there was a contract of a similar description, but the court thought that the circumstance of the change of the stable altered tlie character in which the plaintiff there held possession of the horse. For the plaintiff, thereby consenting to have the horse placed in the livery stable, ceased to keep possession as owner, and held it oxAy in his capacity of livery-stable keeper. There is no circumstance of that description in the present case. It is quite clear that the present 1 Bayley, Holeoyd, and Best, JJ., delivered brief concurring opinions. SECT, v.] BENT ALL V. BURN. 843 plaintiffs kept possession of the horse as owners until it was sent to Kimpton Park. If indeed it had been sent there and entered in tlie defendant's name by his directions, I should have thought it would have amounted to an acceptance by him. But here it was entered in the plaintiffs' name, and the plaintiffs' character of owner remained un- changed from first to last, and they could not have been compelled to deliver it without the payment of the money. There was then no suf- ficient acceptance to take the case out of the Statute of Frauds ; and consequently the action is not maintainable. Bayley, J. The Statute of Frauds is a remedial law, and we ought not to endeavor to strain the words in order to take a particular case out of the statute. By the 17th section it is provided that, in the case of a sale of goods above the value of £10, the buyer must accept and actually receive part of the goods so sold. There can be no acceptance or actual receipt by the buyer, unless there be a change of possession, and unless the seller divests himself of the possession of the goods, though but for a moment, the property remains in him. Here the plain- tiffs had a lien on the horse, and were not compellable to part with the possession till the price was paid. Then the question is, Was there any- thing to deprive them of that right? It is said that the horse was fired, but after that he still remained in their possession. Then he was sent under the care of their servant to Kimpton Park, but that was no act of delivery to dispossess them of the horse. At Kimpton Park he was entered in the name of one of the plaintiffs, and they still, therefore, re- tained a control over him. How can it be said that the horse was in the possession of the defendant, when he had no right to compel a de- livery to him. For he could not, on tendering the keep, maintain trover against the park-keeper, because the possession had not passed from the vendors to him. The case of Elmore v. Stone is distinguishable. There the original owner of the horse had stables in which he kept Iiorscs as owner, and others where he kept them as livery-stable keeper ; and the court considered that, J)y changing the horse from the one to the otiier, he had divested himself of the possession and given up his lien. But there is no circumstance of that sort here. liule absolute.^ BENTALL and Others, Assignees of Baker and Farnley, Bankrupts, and DYER v. BURN. In the King's Bench, November 9, 1824. [Reported in 3 Barnewall ^ Cresswell, 423.] Assumpsit for goods bargained and sold and goods sold and delivered by Dyer and the bankrupts before their bankruptcy. This * HoLROYD, J., delivered a brief concurring opinion. S44 ROHDE V. TIIWAITES. [CHAP. VL was an action brought to recover £13 14s., the price of a hogshead of Sicilian wine sold to the defendant by the bankrupts, they being copartners with the other plaintiff, Dyer, who resided in Sicily. At the trial before Abbott, C. J., at the London sittings after last Trinity term, it appeared that the bankrupts had, on the 15th of February, 1822, sold, in the name of and on account ot the firm, to the defend- ant a hogshead of Sicilian wine, then lying in the London docks, af the price of £13 14^., and at the same time a deliver}' order and invoice were made out and sent to the defendant, signed by the firm. But there was no contract in writing. On the 5th of June the defend- ant, on being applied to for payment, said that the former order had been lost, and that the wine had not been transferred to him in proper time, and he had consequently lost the sale of it; that he had not been allowed to taste it. It was proved that a delivery order is given where the wine is intended to be speedilj' removed, and that the party receiving it may get the goods mentioned in the order upon producing it at the London docks and paying the charges, which are always deducted from the price. Upon this evidence the Lord Chief Justice was of opinion that the acceptance of the deliver}' order by the vendee was not equivalent to an actual acceptance of the goods within the meaning of the Statute of Frauds ; and he directed a nonsuit to be en- tered, with liberty to the plaintiffs to move to enter a verdict for them for the price of the wine. Per Curiam. There could not have been any actual acceptance of the wine by the vendee until the dock company accepted the order for the delivery, and thereby assented to hold the wine as the agents of the vendee. They held it originally as the agents of the vendors, and as long as they continued so to hold it the property was unchanged. It has been said that the London Dock Company were bound by law, when required to hold the goods on account of the vendee. That may be true, and they might render themselves liable to an action for refusing so to do ; but if they did wrongfully refuse to transfer the goods to the vendee, it is clear that there could not then be any actual acceptance of them by him until he actually took possession of them. Bule re/used. ROHDE AND Others v. THWAITES. In the King's Bench, Hilary Term, 182i [Reported in 6 Barnewall Sf Cressivell, 388.] Declaration stated that on the 3d of December, 1825, the defend- ant bargained for and bought of the plaintiffs, and the plaintiffs at the request of the defendant sold to him certain goods, to wit, twenty bogslioads of sugar, at i>(ji>. Gd. per cwt. to be delivered by the plain- SECT, v.] ROHDE V. THWAITES. 845 tiffs to the defendant upon request, and to be paid for at the expira- tion of two months then following ; and in consideration thereof, and that the plaintiffs at the like request of the defendant had undertaken and faith full}' promised the defendant to deliver the goods to him, he the defendant undertook and faithfully promised the plaintiffs to accept the goods when he should be requested, and to pay them the plaintiffs for the same at the expiration of the said credit. Averment, that the price of the goods amounted to a certain sura, to wit, &c., and that although the plaintiffs had always been ready and willing to deliver the goods to the defendant, and requested him to accept the same, and although the credit had expired, yet the defendant did not, nor would at the time when he was so requested, or at any time before or after- wards, accept the goods or pay the plaintiffs or either of them for the same, but refused so to do. There was then an indebitatus count for goods bargained and sold. The defendant suffered judgment to go by default. Upon the execution of the writ of inquiry the plaintiffs proved that a contract for the sale of twenty hogsheads of sugar was made on the 3d of December, 1825, at 56s. M. per cwt., but there was no suffi- cient note in writing to satisfy the Statute of Frauds. On that day the plaintiffs had in their warehouse on the floor, in bulk, a much larger quantity of sugar than would be required to fill up twent}' hogsheads, but no part of it was in hogsheads. The defendant saw the sugar in this state in the plaintiffs' warehouse, and then made the contract in question. Four hogsheads were filled up and delivered to the defend- ant on the 10th of December, and a few da^'s afterwards the plaintiffs filled up the remaining sixteen hogsheads, and gave notice to the defendant that the}' were ready, and required him to take them away ; he said he would take them away as soon as he could. The}' were not weighed till February, 1826, when the i)laintiffs delivered a bill of parcels to the defendant. The plaintiffs added to the bulk from time to time as sales were made, and it did not very distinctly appear whether the sixteen hogsheads were filled wholly with the same sugar which was in the warehouse on the 3d of December when the contract was made. The four hogsheads which were first delivered were filled with that sugar. It was admitted that there was sufficient evidence of a sale of the four hogsheads, inasmuch as there was an acceptance of them b}' the defendant. No contract in writing sufficient to satisf}- the Statute of Frauds having been proved, it was insisted that there was no evidence of any contract of sale of the sixteen hogsheads of sugar, and that the plaintiffs could only recover for the four hogsheads which had been actual!}' delivered ; but the jury under the direction of the undcr-sheriflf found a verdict for the value of the twenty hogsheads. A rule nisi for setting aside the writ of inquiry having been obtained by Hutchinson in Trinity term, JF. Pollock now showed cause. Hutchinson, contra. B.vYi.F.v, J. Wlioi-c a man sells i)nrt of a largo i)arcel of goods, and 846 ROHDE V. THWAITES. [CIIAP. VL it is at his option to select part for the vendee, he cannot maintain any action for goods bargained and sold until he has made that selection ; but as soon as he ap[)ropriates part for the benefit of the vendee, the property in the article sold passes to the vendee, although the vendor is not bound to part with the possession until he is paid the price. Here there was a bargain by which the defendant undertook to take twent}' hogsheads of sugar, to be prepared or filled up bj- the plaintiffs. Four were delivered ; as to them there is no question, but as to the six- teen it is said that, as there was no note or memorandum of a contract in writing sufficient to satisfy the Statute of Frauds, there was no valid sale of them ; and that the plaintiffs in their declaration having stated their claim to arise by virtue of a bargain and sale, cannot recover for more than the four hogsheads which were actually delivered to and accepted b}' the defendant ; that in order to recover for the others they ought to have declared specially that, in consideration the plaintiffs would sell, the defendant promised to accept them. In answer to this it is said that there was an entire contract for twenty hogsheads, and that the defendant by receiving four had accepted part of the goods sold within the meaning of the 17th section of the Statute of Frauds. In fact the plaintifts did appropriate for the benefit of the defendant sixteen hogsheads of sugar, and they communicated to the defendant that they had so appropriated them, and desired hira to take them awa}' ; and the latter adopted that act of the plaintiffs, and said he would send for them as soon as he could. I am of opinion that by reason of that appropriation made by the plaintiffs, and assented to by the defendant, the property in the sixteen hogsheads of sugar passed to the vendee. That being so, the plaintiffs are entitled to recover the full value of the twenty hogsheads of sugar under the count for goods bargained and sold. The rule for setting aside this writ of inquiry must therefore be discharged. HoLROYD, J. The sugars agreed to be sold being part of a larger parcel, the vendors were to select twent}- hogsheads for the vendee. That selection was made by the plaintiffs, and they notified it to the defendant, and the latter then promised to take them awa}'. That is equivalent to an actual acceptance of the sixteen hogsheads b}' the defendant. That acceptance made the goods his own, subject to the vendors' lien as to the price. If the sugars had afterwards been destro3'ed by fire, the loss must have fallen on the defendant. I am of opinion that the selection of the sixteen hogsheads by the plaintiffs, and the adoption of that act by the defendant, converted that wliich was before a mere agreement to sell into an actual sale, and that the prop- erty in the sugars thereby passed to the defendant ; and consequently that they were entitled to recover to the value of the whole under the count for goods bargained and sold. LiTTLEDALE, J. , concurrcd. Mule discharged. SECT, v.] DODSLEY V. VARLEY. 847 DODSLEY V. VARLEY. In the Queen's Bench, November 5 & 24, 1840. [Reported in 12 Adolphus ^ Ellis, 632.] Assumpsit for goods bargained and sold. Plea, non assumpsit. On the trial before Littledale, J., at the last Nottingham assizes, it appeared that the action was brought for the price of wool bought of plaintiff by defendant through his agent. After the purchase the wool was deposited on the premises of a person named Townrow, under circumstances which will appear by the judgment of the court ; and it had not been removed thence or paid for when the action was brought. The defendant's counsel urged, among other objections, that the evidence did not show a delivery and acceptance within stat. 29 Car. 2, e. 3, § 17. Verdict for the plaintiff. Our. adv. vult. Lord Denman, C. J., in the same term (November 24) delivered judgment. In this case, which was moved on three grounds for a nonsuit, we have examined our bi'other Littledale's notes, and are of opinion there should be no rule. The first and second grounds were that there was no proof of agency' in Bamford, by whom the wools, the subject-matter of the action, were bought ; or, if there were, that such agency had l)een countermanded before the contract was completed so as to satisfy the Statute of Frauds. (It is unnecessary to report the judgment on these i)oints. which turned merely on the facts, and was in favor of the plaintiff.) It was contended, thirdly, that there was no contract com- pleted by delivery and acceptance so as to satisfy the Statute of Frauds. The facts were, that the wool was bought while at the plaintiff's ; the price was agreed on, but it would have to be weighed: it was then removed to tlie wareliouse of a third person, where Bamford collected the wools which he purchased for defendant from various persons, and to which place the defendant sent sheeting for the packing up of such wools. There it was weighed together witli tlie other wools, and packed, l)ut it was not paid for. It was the usual course for the wool to remain at this place till paid for. No wish was expressed to take the opinion of the jury on tlie fact of agency, the defendant's counsel acquiescing in that of the judge, provided the circumstances would amount to it in point of law. We agree that they might; therefore all these must be taken to be the acts of the defendant. Then he has removed the plaintiff's wool to a place of deposit for his own wools ; he has weighed it with his other purchases of wool ; he has packed it in his own sheeting: everything is complete but the payment of the price. It was argued that, because by the course of dealing he was 848 EDAN V. DUDFIELD. f CHAP. VL not to remove the wool to a distance before payment of the price, ^ the property had not passed to him, or that the plaintiff retained such a lieu on it as was inconsistent with the notion of an actual delivery. We think that, upon this evidence, the place to which the wools were removed must be considered as the defendant's warehouse, and that he was in actual possession of it there as soon as it was weighed and packed ; that it was thenceforward at his risk, and if burned must have been paid for by him. Consistently with this, however, the plaintiff bad not what is commonly called a lien, determinable on the loss of possession, but a special interest, sometimes, but improperly, called a lien, growing out of his original ownership, independent of the actual possession, and consistent with the property being in the defendant. This he retained in respect of the term agreed on, that the goods should not be removed to their ultimate place of destination before payment. But this lien is consistent, as we have stated, with the possession having passed to the buyer, so that there may have been a delivery to and actual receipt by him. This, we think, is the proper conclusion upon the present evidence ; and there will be no rule. Hide refused.^ EDAN V. DUDFIELD. In the Queen's Bench, January 12, 1841. [Reported in 1 Queen's Bench Reports, 302.] Debt for goods sold and delivered, and on an account stated. Pleas. 1. As to all but £1 9s. 2d., parcel &c., nunqiiam indebitatus. Issue thereon. 2. As to the same, a set-off. Replication, denying the debt set off. Issue thereon. 3. As to the £1 9s. 2d., tender of the same; which the plaintiff took out of court, and acknowledged satisfaction 2)ro tanto. On the trial before Lord Denman, C. J., at the Middlesex sittings after Hilary term, 1839, it appeared that the defendant was employed by the plaintiff to clear goods for him at the custom-house, and was accustomed to enter goods of the plaintiff, and did actually enter the goods now in question (German toys), then belonging to the plaintiff, in his own name. In the beginning of April, 1838, plaintiff was in defendant's debt to the amount of about £50, and defendant proposed to plaintiff that the goods should be sold, and that defendant should retain his debt out of the proceeds ; the plaintiff assented to this, and gave defendant a written authority to sell them. Afterwards and ^ The evidence of Bamford, the agent, was (after stating tlie deposit at Town- row's) : It is a regular thing for the wool, when bought, to remain where it is kept Until it is paid for. 2 See Blackburn on Sale, pp. 38-41. SECT. V.i EDAN V. DUDFIELD. 849 before any sale, defendant, in conversation with an agent of plaintiff, said that be would keep the goods himself at the invoice price, less a discount of 15 per cent: this was communicated to plaintiff. The goods were subsequently sold by defendant about the end of April. Afterwards the defendant delivered an account current to the plaintiff, in which was an item, under date of April, 1838, " Two cases of toys, &c., sold for £120." The counsel for the defendant objected that there was no acceptance to satisfy § 1 7 of the Statute of Frauds ; but the Lord Chief Justice held that there was a case for the jury, reserving leave to move for a nonsuit. Verdict for jilciint iff. Thomas showed cause. Kelly, contra. Cur. adv. vult. Lord Denman, C. J., in this term (January 12) delivered the judgment of the court. After stating the ground of motion to be that there was no memorandum in writing, nor, as the defendant alleged, any acceptance, his Lordship proceeded as follows : — The facts were that the defendant had acted as agent for the plain- tiff on several occasions in relation to certain merchandises imported from France, and that the goods in question were lying at the custom- house in the defendant's name, to be sold by him for the plaintiff. The plaintiff was considerably indebted to the defendant, who was pressing that a sale should be made that he might pay himself out of the pro- ceeds, and an authority to sell dated 6th April was given by the plaintiff to the defendant, and produced in the course of the plaintiff's evidence. But a witness stated that at the end of the same month he had called on the defendant on behalf of the plaintiff, and that in that conversation the defendant finally agreed to buy these goods himself 15 per cent under the cost price. The defendant subse- quently sold the goods and rendered a debtor and creditor account to the plaintiff, in which crecHt was given to the plaintiff for the goods by an item in tliese words: " Goods (describing them) sold for £120." The action was brought in effect for that sum, and the verdict passed accordingly. Tlie plaintiff argued that tliis parol contract of sale was binding within the statute, because the defendant had accepted the goods in selling them and keeping the money. This was denied ; and it was said that the statute, requiring acceptance and actual receipt of the whole or part where there was no written memorandum, could not be satisfied in the case of one at the time of the bargain possessed of the goods, inasmuch as that circumstance prevents them from being delivered to him or actually received by him in virtue of the sale. At all events it was contended that no act could be relied on to prove acceptance and receipt but what was inconsistent with the purpose of the prior possession ; whereas in tliis case all tliat was done, the sale and the account rendered, were perfectly consistent with the authority previously given and the defendant's character of agent. We have 850 ED AN V. DUDFIELD. [CIIAP. VI. no doubt that one person In possession of another's goods may become the purchaser of them by parol, and may do subsequent acts with- out any writing between the parties which amount to acceptance [receipt?^]; and the effect of such acts, necessarily to be proved by parol evidence, must be submitted to the jury. We entertain this opinion after fully considering all the cases cited, especially Elmore V. Stone, 1 Taunt. 458 ; Nicholle v. Plume, 1 C. & P. 272 ; Maberley V. Sheppard, 10 Biug. 99 ; ^ agreeing that such evidence must be unequivocal, but thinking the question, whether it is so or not under all the circumstances, fact for the jury, not matter of law for the court. It was indeed contended that parol evidence was inadmissible to explain the character of the acts relied on to prove acceptance ; for that to admit it would let in all the inconvenience which the statute was intended to prevent. No case, however, warrants the holding the rule so strict; nor does convenience require it; for where there is the foundation of an act done to build upon, the admission of declarations to explain that act lets in only that unavoidable degree of uncertainty to which all transactions to be proved by ordinary parol evidence are liable. Upon this principle stat. 9 G. 4, c. 14, § 1, on a very anal- ogous matter, has been construed in the Court of Exchequer. For, w1]ilst in Willis v. Newham, 3 Y. & J. 518, it was held that part pay- ment, to take a case out of the Statute of Limitations, could not be proved by a verbal acknowledgment only, it was held in Waters v. Tompkins, 2 C. M. & R. 723, s. c. Tyrwh. & Gr. 137, that, where a sum had been paid without any statement on what account, declara- tions were admissible to explain on what account. Therefore a non- suit cannot be entered. The motion for a new trial, on the ground that the verdict was against the evidence, was supported by some very strong observations on the probabilities of the case, which were not, however, exclusively in favor of the defendant. It was moved for also on defendant's afhdavit, which we have thought it right to examine carefully with those on the other side. The answer which these give is complete : no subsequent information has been or can be obtained ; and the defendant's case is narrowed to the improbability that that of his adversary can be true. But this has been already considered by the jury, who were satisfied with the proof of it by a witness whose char- acter stands unimpeached. Bule discharged.^ 1 See Benj. on Sales, § 173. 2 And see Dodsley v. Varley, 12 A. & E. 632. 3 Devine v. Warner, 75 Conn. 375, 379; Snider v. Thrall, 56 Wis. 674, ace. See, also. Smith v. Bryant, 5 Md. 141. Dorsey v. Pike, 50 Huii, 845; Follett Wool Co. v. Utica Trust Co., 84 N. Y. App. Div. 151; Linde r.' Huntington, 37 N. Y. Misc. 212, contra. SECT. V.7 BILL V. BAMENT. 851 BILL V. BAMENT. In the Exchequer, November 11, 1841. [Reported in 9 Meeson Sf Welsby, 36.] Assumpsit for goods sold and delivered, and on an account stated. Plea, non assumpsit. At the trial before Lord Abinger, C. B,, at the London sitthigs after Trinity term, the following facts appeared : — Tiie defendant ordered of one Harvej', who was an agent of the plaintiff under a del credere commission, a quantity of goods, including twenty dozen hair-brushes and twelve dozen clothes-brushes, to be paid for on deUvery at a stipulated price, but no memorandum in writing of the bargain was made at the time. On receiving notice from Harvey that the brushes had arrived at his warehouse, the defendant on the 22d of March last went there, and directed a boy whom he saw there to alter the mark " No. 1 " upon one of the packages to "No. 12," and to send the whole of the goods to the St. Catharine's Docks. The next day an invoice was delivered to the defendant, charging the brushes respectively at the rate of 85. and 12«. each. The defendant objected to the price, alleging that by the contract, as he had understood it, the above were to be the prices of the brushes per dozen, and refused to pay for them. On the 24th of March the plaintiff commenced the pres- ent action for the price. On the 27th the defendant at Harvey's request wrote in Harvej^'s ledger, at the bottom of the page which contained the statement of the articles ordered by the defendant, and which page was headed "Bill & Co.," the following words: "Received the above, John Bament." The rest of the goods were sent to and received b}- tlie defendant. It was objected for the defendant that there was no evidence of any contract in writing, or of any acceptance of the brushes, sufficient to satlsf}' the 17th section of the Statute of Frauds. The Lord Chief Baron reserved the point, and the plaintiff had a verdict for the amount claimed, leave being reserved to the defendant to move to enter a nonsuit. Thesiger and Martin now showed cause. JEiie (with whom was Whateley) , contra. Loiu) AniNGER, C. B. If the question at the trial had turned alto- gether upon tlie acceptance, I should then have formed the same oi)inion as I do now. In order to make it such an acceptance as to satisfy the statute, it should appear that there was a delivery. Here Harvey was the plaintiff's agent, and sold for ready mone}' ; and he was not bound to deliver tlie goods until payment of tlie price. Now all that takes place is a direction by the defendant to alter tlie mark on the goods, and to send them to the docks ; but the (juestion is, whether tliis was done under such circumstances, and Harvey stood in such a situation, as that he was bound to send them to the docks. The acceptance, to be effectual under the statute, should Le sueh as to devest the property 852 BILL V. BAMENT. [cHAP. VL in the goods out of the seller. Here the defendant probabl}- meant to accept them, and to make Harvey his agent for shipping them. But can it be said that he was his agent to deliver at all events? I tliink clearl}' not. He was at libert}' to sa}' that he would not deliver to or ship for the defendant until the goods were paid for. There is nothing to show that he contracted to hold them as the defendant's agent, or by implication to make him his agent. Therefore, for want of a delivery, there was no sufficient acceptance of these goods. The rule will be absolute, but not for a nonsuit, as it appears that some goods were received by the defendant, but for a new trial on payment of costs by the plaintiff. Parkk, B. I concur in thinking thai there was no evidence to go to the jury to satisfy the Statute of Frauds. With regard to the point which has been made by Mr. Martin, that a memorandum in writing after action brought is sufficient, it is certainly quite a new point ; but I am clearly of opinion that it is untenable.^ There must, in order to sustain the action, be a good contract in existence at the time of action brought ; and to make it a good contract under the statute there must be one of the three requisites therein mentioned. I think therefore that a written memorandum, or part paj'ment after action brought, is not sufficient to satisf}' the statute. Then, to take the case out of the 17th section, there must be both delivery and acceptance ; and the question is, whether the}' have been proved in the present case. I think they have not. I agree there was evidence for the jury of acceptance, or rather of intended acceptance. The direction to mark the goods was evidence to go to the jury quo animo the defendant took possession of them : so also the receipt was some evidence of an acceptance. But there must also be a delivery ; and to constitute that the possession must have been parted with by the owner so as to deprive him of the right of lien. Harvey might have agreed to hold the goods as the warehouseman of the defendant, so as to deprive himself of the right to refuse to deliver them without payment of the price ; but of that there was no proof. There was no evidence of actual marking of the goods, or that the order to mark was assented to bj' Harve}*. I am of opinion, therefore, that there was no sufficient proof of acceptance to satisfy the statute, and that the case falls within the 17th section. GuRNEY, B., and Rolfe, B., concurred. Hule absolute accordingly. 1 Lucas V. Dixon, 22 Q. B. D. 357, ace. Remington v. Linthicum, 14 Pet. 84 (land), contra. See, also, Cash v. Clark, 61 Mo. App. 636. SECT, v.] LILLYWHITE V. DEVEREUX. 853 LILLYWHITE v. DEVEREUX. In the Exchequer, February 21, 1846. [Reported in 15 Meeson ^ Welsby, 285.] This was an action brought against the defendant as executrix in her own wrong of James Edward Devereux, deceased. The declaration contained amongst others a count for the use and occupation of a dwel- ling-Iiouse, and also a count for goods sold and delivered to the deceased in his lifetime, and promises by him. Nothing turned on the other two counts. At the trial before Tindal, C. J., at the last assizes for Surre}', it appeared that the defendant was the daughter of the deceased and had intermeddled with his property after his decease. It was proved in evidence that the house had been let furnished by the plaintiff to the deceased at £1 5s. per week. About the middle of December, 1845, the plaintiff, who was himself a tenant to a Wm. Kent, was desirous of getting rid of that tenancy from the 25th of the month, the end of the current year of his holding, and offered to sell the furniture of the house to the deceased for £50. This the deceased thought too much, but verbally agreed to have the goods valued, and pay as much as they should be found worth, Mr. Kent agreeing to accept the deceased as tenant from that day. On the 14th a valuer of the name of Piggott was sent for, with the approbation of both parties, who valued the goods at £80. This the defendant refused to give, but offered to give the amount, £50, at which the plaintiff had before offered to sell them. On Christmas eve, one Elland, the brother-in-law of the plaintiff, took the key out of the street door of the house and gave it to the defendant, — the deceased being at that time very ill, — with a view of giving up the house to the deceased, that a new holding should be commenced after that period under Kent. On that occasion the defendant said, after she received the key, "How about the furniture?" to which Elland replied, "You must settle about that with Wm. Lillywhite" (the plain- tiff). Kent refused to receive the deceased as his tenant, and he con- tinued to occupy the house and furniture as before, giving to the plaintiff, however, continually notice to take away the furniture, which he refusctl to do; and ultimately, about the 17th of March following, it was removed by the deceased to a broker's near, and notice thereof was given to the plaintiff. Soon afterwards the deceased removed to another house with his daughter. The action was brought to recover the rent up to this period, and also the price of the furniture. The Lord Chief Justice directed the jury, first, that there was no evidence of any change in the terms of the tenancy, as the intended holding under Kent had gone off, and without the consent of the plaintiff to letting the house at a lower rent than the £1 5s. per week ; and, secondly, tliat it was for the jury to say, whether by continuing in possession after the valuation 854 LILLYWHITE V. DEVEREUX. [CIIAP. VL the deceased did not accept and take possession of the furniture at the valued price. The jury found a verdict on both counts, damages £92. Doicling, Serjt., now sliowed cause. Chambers and Fortescue, in support of the rule. Cur. adv. vult. The judgment of the court was now delivered by Alderson, B. This case was argued last term before my Lord Chief Baron, my brother Piatt, and myself. The motion was that there should be a new trial unless the plaintiff would consent to reduce the verdict. There were two demands : One for the use and occupation of a house ; and the question as to that was, whether the rate of charge should be as for a furnished or an unfurnished house ; in the one case the amount of damages being, as to this part of the demand, £5, in the other £17 10s. The second demand was for the price of the furniture, alleged to have been sold by the plaintiff to the deceased. This ques- tion turned upon the fact, whether there had been an acceptance of goods by the testator, so as to take the case out of the operation of the Statute of Frauds : there was no contract in writing for the purchase. The Lord Chief Justice left the question to the jury, who found in favor of the plaintiff. The goods in question, the subject of dispute, were in the possession of the defendant at the time when the contract was made. No doubt can be entertained, after the case of Edan v. Dudfield, which was well decided by the Court of Queen's Bench, that this is a question of fact for the jury ; and that,' if it appears that the c.onduct of a defendant in dealing with goods already in his possession is wholly inconsistent with the supposition that his former possession continues unchanged, he may properly be said to have accepted and actually received such goods under a contract, so as to take the case out of the operation of the Statute of Frauds ; as for instance if he sells or attempts to sell goods, or if he disposes absolutely of the whole or any part of them or attemjjts to do so, or alters the nature of the propert}-, or the like. But we think such facts must be clearly shown ; and in this case, after careful consideration of all the facts contained in my Lord Chief Justice's notes, we can find no sufficient evidence of this sort. We therefore think the verdict of the jury as to this part of tlie ease is altogether wrong, and that there reall}' was no evidence of acceptance so as to take this case out of the operation of the Statute of Frauds. And if so, it is clear that the subsequent possession by the testator was the use and occupation of a furnished and not of an unfur- nished house. We therefore think there should be a new trial unless the plaintiff consents to reduce the damages to £17 10s. Mule absolute accordingly. SECT, v.] FARINA V. HOME. 855 FARINA V. HOME. In the Exchequer, November 16, 1846. [Reported in 16 Meeson ^ Welsby, 119.] Debt for goods sold and delivered, and on an account stated. Plea, nunquam indebitatus. At the trial before the under-sheriff of Middlesex it appeared that the action was brought b}' the plaintiff, the well-known manufacturer of eau-de-Cologne, residing at the city of Cologne, to recover from the defendant, a dealer in eau-de-Cologne in London, the sum of £15, price of twenty-five dozen of eau-de-Cologne, which in July, 1845, the defend- ant had verball}' ordered from the plaintiff. It was accordingly sent b}' the plaintiff from abroad to a shipping agent of the plaintiff in London named Brenchley, who received it and warehoused it with one Barber a wharfinger, at the same time informing the defendant of its arrival. On receipt of the goods Barber handed to Brenchle\' a deliveiy warrant dated 21st July, whereby they were made deliverable to Brenchley or his assignee by indorsement on pa3'ment of rent and charges from the 25th of Jul V. Brenchley forthwith indorsed and sent it to the defendant. The defendant kept the warrant for about ten months ; and, although repeatedl3' applied to to pa}' the price of and charges on the goods, he did not do so ; and he refused also to give back the warrant, sajing that he had sent it to his solicitor and that he intended to defend the action, for he had never ovdered the goods ; and adding that they would remain for the present in bond. Upon these facts it was contended for the defendant that there was no evidence of the delivery and acceptance of the goods sufficient to satisfy the Statute of Frauds. The under-sheriff left the question to the jiuy, whether the defendant had accepted and received the goods, stating that to bring the case within the statute it must be an accept- ance with the intention of taking possession as owner. The jury found a verdict for plaintiff, damages £16 lis. Thomas showed cause. Prentice, in support of the rule. The judgment of the court was now delivered by Paukk, B. In this case, which was argued before us in the absence of the Lord Chief Baron a few days ago, the only point we wished to consider was, whether there was sufficient evidence of the acceptance and actual receipt of the goods to satisfy the 17tii section of the Statute of Frauds. The evidence as to this part of the case was that, after the defendant had verbally ordered a quantity of cau-de-Cologno, and at the price of more than £10, from the plaintiff's agent in London (the plaintiff residing at Cologne), a case containing the quantit}' ordered was received by the agent, and warehoused by him with a wharfinger 856 FARINA V. HOME. [CIIAP. VI. and warehouse-keeper who gave for it a document dated the 21st of July which is called a warrant, b}* which the case was made deliverable to the agent or his assignee b^' indorsement, on payment of rent and charges from the 25th of July, and tlie agent indorsed it to the defendant and sent it to him. This warrant the defendant kept for some months. He was repeatedl}' applied to for the charges upon and price of the eau-de-Cologne, which he did not pay ; nor did he return the warrant when asked for it, but said he had sent it to his solicitor, and meant to defend the action, as he had never ordered the goods ; and he further said the goods would remain at present in bond. It was contended on the trial before the under-sheriff that there was no such evidence of the acceptance and receipt of the goods as to bind the bargain. The under-slierifF left the question of receipt and accept- ance to the jury, stating, and correctly stating, that to bring the case within the statute the acceptance must be with the intention of taking possession as owner. The jury found a verdict for the plaintiff. The under-sheriff ordered the writ of trial to be retained, in order to allow time for an application to the court. On a motion for a new trial we intimated our opinion that there was evidence to go to the jury of the defendant's acceptance of the goods by retaining the delivery warrant ; but Mr. Prentice insisted that there was no sufficient evidence of the actual receipt of the goods, that is, the delivery of the possession of the goods on behalf of the vendor to the vendee, and the receipt of the possession by the vendee ; and that the delivery and receipt of the war- rant was not in effect the same thing as the delivery and receipt of the goods ; and we are all of that opinion. This warrant is no more than an engagement by the wharfinger to deliver to the consignee or any one he may appoint ; and the wharfinger holds the goods as the agent of the consignee (who is the vendor's agent), and his possession is that of the consignee until an assignment has taken place, and the wharfinger has attorned, so to speak, to the assignee, and agreed with him to hold for him. Then, and not till then, the wharfinger is the agent or bailee of the assignee, and his possession that of tlie assignee, and then onl}' is there a constructive delivery to him. In the mean time the warrant, and the indorsement of the warrant, is nothing more than an offer to hold the goods as the warehouseman of the assignee. The case is in principle the same as that of Bentall v. Burn, and others, which are stated and well discussed in a recent able work of Mr. Blackburn, "On the Contract of Sale," pp. 27-41, 297 ; and in Mr. C. Addison's work, p. 70. We all therefore think that, though there was sufficient evidence of the acceptance if the goods had been delivered to the defendant, there is none of the receipt ; and therefore there must be a new trial. Rule absolute.^ 1 See, also, Boardman v. Spooner, 13 Allen, 353; Bassett v. Camp, 54 Vt. 232. Con/. Rodgers v. Phillips, 40 N. Y. 519, 527. SECT. V.j MORTON V. TIBBETT. 857 MORTON V. TIBBETT. In the Queen's Bench, May 31, 1850. [Reported in 15 Queen's Bench Reports, 428.] Debt for goods sold and delivered, and goods bargained and sold. Plea, nunquam indebitatus. Issue thereon. On the trial before Pollock, C. B., at the Cambridgeshire spring assizes, 1849, it appeared that the action was brought to recover the price of fifty quarters of wheat. On 25th August, 1848, the plaintiff sold the wheat to the defendant by sample. The defendant said that he would send one Edgley, a general carrier and lighterman, on the following morning to receive the residue of the wheat in a lighter for the purpose of conve3-ing it by water from March, where it then was, to Wisbeach ; and the defendant himself took the sample away with him. On 26th August Edgley received the wheat accordingly. On the same day the defendant sold the wheat at a profit, by the same sample, to one Hampson at Wisbeach market. The wheat arrived at Wisbeach in due course on the evening of Monday the 28th August, and was tendered by Edgley to Hampson on the following morning, when he refused to take it, on the ground that it did not correspond with the sample. Up to this time the defendant had not seen the wheat ; nor had any one examined it on his behalf. Notice of Hamp- son's repudiation of his contract was given to the defendant ; and the defendant on Wednesday the 30th August sent a letter to the plain- tiff repudiating his contract with the plaintiff on the same ground. There was no memorandum in writing of the bargain within §17 of the Statute of Frauds, 29 Car. 2, c. 3 ; and it was objected for the defendant that there was no evidence of acceptance and receipt to satisfy the requirements of the same section. The Lord Chief Baron overruled the objection ; and the counsel for the defendant addressed the jury exclusively on the question of such acceptance and receipt. A verdict was found for tlie plaintiff, and leave given to move to enter a nonsuit, if the court should think either that there was no evidence of acceptance and recei[)t or no such evidence as justified the verdict. Worlledgc in Easter term, 1840, obtained a rule nisi accordingly. In this term (May 22d), Andrews and Malley showed cause. Worlledfje and Couch, contra. Cur. adv. vidt. Lord Campbell, C. J., now delivered judgment. In this case the question submitted to us is, whether there was any evidence on which the jury could be justified in finding that tlio buyer accepted the goods and actually received the same, so as to render him liable as buyer, althougli he did not give anything in earnest to 858 MORTON V. TIBBETT. [CHAP. VI. bind the bargain or in part payment, and there was no note or memo-' randiim in writing of tlie bargain. It would be ver}' difficult to reconcile the cases on this subject ; and the difference between them may be accounted for by the exact words of the 17th section of the Statute of Frauds not having been always had in recollection. Judges as well as counsel have supposed that, to dispense with a written memorandum of the bargain, there must first have been a receipt of the goods by the buyer, and after that an actual acceptance of the same. Hence perhaps has arisen the notion that there must have been such an acceptance as would preclude the buyer from questioning the quantit}' or quality of the goods, or in an}' way disputing that the contract has been fully performed b}' the vendor. But the words of the Act of Parliament are [stating them]- It is remarkable that, notwithstanding the importance of having a written memorandum of the bargain, the Legislature appears to have been willing that this might be dispensed with where by mutual con- sent there has been part performance. Hence the payment of an\- sum in earnest to bind the bargain or in part payment is sufficient. The same effect is given to the corresponding act by the vendor of delivering part of the goods sold to the buyer, if the buyer shall accept such part and actually receive the same. As part payment however minute the sum may be is suflScient, so part delivery however minute the portion may be is sufficient. This shows conclusivel}' that the condition imposed was not the complete fulfilment of the contract to the satisfaction of the buyer. In truth the efl^ect of fulfilling the condition is merely to waive written evidence of the contract and to allow the contract to be established by parol as before the Statute of Frauds passed. The question may then arise, whether it has been performed either on the one side or the other. The acceptance is to be something which is to precede or at any rate to be contemporaneous with the actual receipt of the goods, and is not to be a subsequent act after the goods have been actually received, weighed, measured, or examined. As the Act of Parliament expressly makes the acceptance and actual receipt of any part of the goods sold sufficient, it must be open to the buyer to object at all events to the quantit}' and quality of the residue, and even where there is a sale by sample that the residue offered does not correspond with the sample. We are therefore of opinion that, whether or not a delivery of the goods sold to a carrier or an}' agent of the buyer is sufficient, still there may be an acceptance and receipt within the meaning of the Act without the buyer having examined the goods or done anything to preclude him from contending that they do not correspond with the contract. The acceptance to let in parol evi- dence of the contract appears to us to be a different acceptance from that which affords conclusive evidence of the contract having been fulfilled. We are therefore of opinion in this case that, although the defendant SECT, v.] MORTON V. TIBBETT. 859 iiad done nothing which would have precluded him from objecting that the wheat dehvered to Edgley was not according to the contract, there was evidence to justify the jury in finding that the defendant accepted and received it. We will now examine the cases which are supposed to prove the doctrine that there can be no acceptance within the meaning of the Statute of Frauds unless the buyer is precluded from objecting that the vendor has not fully performed the contract on his part. The first of these was Howe v. Palmer, 3 B. & Aid. 321, which we clearly think was well decided, altliough we cannot concur in all the reasons given for the decision. There the only evidence of acceptance and receipt was that the agent of the vendor who had verbally sold to the defendant twelve bushels of tares, part of a larger quantity in the vendor's posses- sion, had measured off twelve bushels of the tares, and set them apart for the purchaser. According to the contract they were to remain in the possession of the vendor till called for. The purchaser therefore neither had accepted nor received the goods. Abbott, C. J., does say : "If he had once accepted he could not afterwards make an}- objection, even if it turned out that the tares did not correspond with the sample." But this observation was quite unnecessary for the deter- mination of the case ; and, with the most sincere respect to the great judge from whom it fell, we do not think that it is applicable. The proper ratio decidendi seems to us to be given by Holroyd, J., where he says ; "In this case there has been no actual receipt of any part of the goods sold within the usual meaning of the term, and I think that what has been done ought not to be considered in point of law as an acceptance. For supposing that it was made part of the contract in this case that the seller should set apart and measure the thing sold, that would not make the act of measuring amount to a virtual accept- ance or receipt of the goods by the buyer." The next case relied upon is Tempest v. Fitzgerald, 3 B. & Aid. G80, where in an action for the price of a horse that had died after the time when he was sold by i)arol and before he was delivered or paid for, the question arose upon whom the loss should fall. The only evidence of acceptance and receipt was that while the horse remained in the possession of the vendor, the pur- chaser made his servant gallop the horse and gave some directions about his treatment, requesting that he might be kept by the vendor a week longer. The court held that there had been no acceptance and receipt of the horse by the purchaser. l>ut the case has little con- nection with the doctrine contended for, that there must be an oppor- tunity for the vendor to inspect the quality of the thing sold ; and Abl)ott, C. J., founds his judgment upon tliis consideration, that the defendant had no riglit of propert}' in the horse till the price was paid, and could not till then exercise any act of ownership over him. Holroyd, J., says: "There is no evidence to show that" the vendor "had ever parted with the possession" of the horse. Next comes Hanson v. Armitnge, 5 B. & Aid. 557. There the vendor, who resided 860 MORTON V. TIBBETT. [CHAP. VL in London, having been in the habit of selling goods to a customer in the coiuitry and of delivering them to a wharfinger to be forwarded by the first ship, in pursuance of a verbal order from the customer de- livered a parcel of goods to the wharfinger to be forwarded in the usual manner. The customer had done nothing beyond giving the verbal order for the goods. Abbott, C. J., in a very few words delivered the judgment of the court that an action could not be maintained for the price of the goods, on the ground that the acceptance in this case not being b}' the party himself was not suflflcient, referring to Howe v. Pal- mer, 3 B. & Aid. 321, where he says : " It was held that there could be no actual acceptance so long as the buyer continued to have a right to object either to the quantum or quality' of the goods." But the decision may well stand on other grounds ; and we may observe that it is an actual receipt of the goods which the statute requires, and not an actual acceptance. Carter v. Toussaint, 5 B. & Aid. 855, was likewise relied upon, but it was merely (like Tempest v. Fitzgerald, 3 B. & Aid. G80), a casii of a sale by parol of a horse that remained always in the posses- sion and under the control of the vendor, so that he could not have been accepted and received by the purchaser. Abbott, C. J., says : "The plaintiffs character of owner remained unchanged from first to last." The next case is Smith v. Surman, 9 B. & C. 561, and there after a sale of timber bj' parol the purchaser had offered to sell the butts, and had given some directions about cross-cutting the timber; but the evidence clearly proved that the whole continued to remain in the possession of the vendor. The court, as might have been expected, held that there could be no receipt by the purchaser while the possession of the goods remained with the vendor. A very learned judge, my brother Parke, does unnecessarily add, 9 B. & C. 577 : " That the later cases have established that, unless there has been such a dealing on the part of the purchaser as to deprive him of any right to object to the quantity or quality of the goods, or to deprive the seller of his right of lien, there cannot be any part acceptance." That there can be no acceptance and receipt by the purchaser while the lien of the vendor remains is clear enough, for the vendor's lien necessarily supposes that he retains the possession of the goods ; but I must be permitted to doubt whether the cases referred to have esta])lished the residue of the rule. The last case cited on behalf of the defendant was Norman v. Phillips, 14 M. & W. 277. This case very much resembled Hanson v. Armitage, 5 B. & Aid. 557, and presented no stronger evidence of acceptance and receipt. The defendant living at Wallingford gave th« plaintiff, a timber merchant in London, a verbal order for timber, direct- ing it to be sent to the Paddington station of the Great Western Rail- way so that it might be forwarded to him at Wallingford. The timber was accordingly forwarded to the Wallingford station ; but tlie defend- ant being informed of its arrival refused to have anything to do with it. The court held that although there might be a scintilla of evidence for the jury of an acceptance of the timber within the Statute of Frauds, SECT, v.] MORTON V. TIBBETT. 861 jet there was not sufficient to warrant them in finding that there was sucli iin acceptance ; and the court set aside a verdict for the plaintiff as not warranted by the evidence. Alderson, B., says: "The true rule appears to me to be that acceptance and deliver}- under the Statute of Frauds means such an acceptance as precludes the purchaser from objecting to the quality of the goods." He adds what, with great deference, is a better reason : "The carrier is only an agent for the purpose of carrying, and here the purchaser himself immediately re- fused to take the goods." It was upon this reason that the rest of the court appears to have proceeded. If there were such a rule as is contended for it would be decisive against the plaintiff in this case, for the defendant never had an oppor- tunity of examining the goods sold ; there is no evidence that Edgley was his agent for that purpose ; and he had done nothing to preclude him from objecting to the quality of the wheat. But if there be no such rule, then surely there was evidence to submit to the jury and to justify them in finding an acceptance and receipt. He specially sent Edgley to receive the wheat : after the delivery of the wheat to his agent and when it was no longer in the possession of the vendor, instead of rejecting it as in other cases, he exercised an act of owner- ship over it by re-selling it at a profit, and altering its destination by sending it to another wharf, there to be delivered to his vendee. The wheat was then constructively in his own possession ; and could such a re-sale and order take place without his having accepted and received the commodity? Does it lie in his mouth to say that he has not accepted that which he has re-sold and sent on to be delivered to another? At any rate is not this evidence from which such an acceptance and receipt may be inferred by the jury? Upon similar evidence the finding of an acceptance and receipt has been sanctioned by very eminent judges. In Hart ?;. Sattley, 3 Campb. 528, where goods had been verbally ordered to be sent fron London to Dartmouth, and were sent by a carrier employed by the defendant, and were not proved to have been rejected b}' him, although there was no proof that they had come to his hands, Chambre, J., is reported to have said : " I think under the circumstances of this case the defendant must be con- sidered as having constituted the master of the ship his agent to accept and receive the goods." The plaintiff recovered a verdict which was not disturbed. In Chaplin v. Rogers, 1 East, 192, where a stack of hay being sold by parol tv the defendant he, without paying for it or re- moving it, re-sold a part of it to another person who took it awa}', and the jury found that the defendant had accepted and received the stack of hay, Lord Kenyon said: "The question was specificallj' left to the jury whether or not there were an acceptance of the hay b}' the defend- ant, and they have found that there was, which puts an end to any fiuestiou of law." " Here the defendant dealt with this commodity Afterwards as if it were in his actual |)Osscssion ; for he sold part of it to another person. ' " The other judges agreed that there was sufficient 862 HUNT V. HECHT. [CHAP. VI. evidence of a deliveiy to and acceptance b}- the defendant to leave to the jury." And the verdict for the plaintiff was confirmed. 80 in Blenkinsop v. Clayton, 7 Taunt. 597, Gibbs, C. J., and the whole Court of Common Pleas, agreed that if a person who has contracted for the purchase of goods otters to re-sell them as his own, whether this be proof of an acceptance and receipt of the goods by himself is a question for the jury. I will only further mention the well-considered case of Bushel v. Wheeler, 8 Jurist, 532, 15 Q. B. 442, note, decided in this court. The defendant residing in Herefordshire had verbally ordered goods from a manufacturer at Bristol ; according to his orders they were sent to Hereford and deix)sited in a warehouse there. After they had been a considerable time there the defendant repudiated them. In an action for the pric^ before a most learned and cautious judge, Mr. Justice Erskine, it was left to the jury whether upon the evidence the buyer had accepted and received the goods ; and the verdict was for the defendant, with liberty to enter a verdict for the plaintiff if the court should be of opinion that there was an acceptance. A rule to show cause was granted ; and cause being shown the court unanimously approved of the direction, but declined to take upon themselves to enter a verdict for tlie plaintiff", and made a rule absolute for a new trial. I particularly rely upon the pointed language in that case of my brother Coleridge, wlio, after observing that the acceptance required by the statute must be very clear and unequivocal, says that it may be con- structive ; and adds that " it is a question for the jury, whetlier under all the circumstances "" the acts which the buyer does or forbears to do are an acceptance or otherwise." These are express decisions through a long course of years that there may be an acceptance and receipt of goods by a purchaser within the Statute of Frauds, although he has had no opportunity of examining them, and although he has done nothing to preclude himself from objecting that they do not correspond with the contract. We approve of these decisions, thinking that they do not infringe upon tlie Statute of Frauds, and that they conduce to fair dealing in trade. We are therefore of opinion that in this case the rule for entering a nonsuit should be discharged. Kule discharged HUNT V. HECHT. In the Exchequer, June 6, 1853. [Reported in 8 Exchequer Reports, 814] Declaration for goods sold and delivered. Plea, never indebted. At the trial before Martin, B., at the London sittings after Easter term, it appeared that in February last the defendant went to the ware- SECT, v.] HUXT V. HECHT. 863 house of the plaintiff, who was a bone merchaut, for the purpose of pur- chasing sooae bones. The defendant there inspected a heap consisting of ox bones mixed with cow bones and other bones of an inferior de- scription. The defendant objected to the latter, but verbally agreed to purchase a quantity of the other bones, to be separated from the rest and to contain not more than 15 per cent of cow bones ; and he directed them to be sent in sacks bearing particular marks to the wharf of one Barber in Lower Thames Street. Shortly afterwards the defendant sent to the plaintiff the following shipping note : — Brewer's, Chester's, and Galley Quays, Lower Thames Street. J. Barber, Wharfinger and Warehouse-keeper. Receive and ship per James Stuckbury & Sons, lighters, the under- mentioned goods : — I Mark | No. | W^harf charges to be paid by Hecht Brothers, London. The above shipping note was enclosed in the following letter : — 35 Seething Lane, Feb. 7, 1853. Dear Sir, — We beg to enclose you shipping note for the bones, the leg bones to be marked ^% and the bullocks '^-^ Please fill up the num- ber of bags in the shipping note and send the goods to the wharf, latest by Wednesday morning next. Waiting your invoice stating how many bags of each sort, we are, sir. Yours sincerely, Hecht Brothers. Mr a. Jarred Hunt, Lambeth. The plaintiff accordingly sent fifty bags marked as requested, and filled up the shipping note. The bags were delivered at the wharf and received b}- the wharfinger on Wednesday the 9th of February, but the defendant was not aware of their having been sent until the following day when tiie invoice was received. The defendant then examined tlie bones, and refused to accept them, on the ground that they were not what he had bargained for. It was objected on behalf of the defendant tiiat there was no evidence of acceptance and receipt to satisfy the re- quirements of the 17th section of the Statute of Frauds, 29 Car. 2, c. 3 ; and the learned judge being of that opinion nonsuited the plaintiff, re- serving leave for him to move to enter a verdict for tlic amount claimed. liramwell showed cause. Maule to support the rule. Martin, B. The question is. Whether the defendant has accepted and actually received the goods bargained for? Tlie contract was to buy such bones as were ordinarj- mcrchantaljle bones. It appears that there were various sorts of bones intermixed in a heap, and that there was no purchase of the bulk, but of a certain article to be selected from it. The defendant was only bound to accept merchantable bones ; and an order is given to a wliarfinger to receive those bones. No doubt in one sense the goods were received by the defendant, because they were 864 PARKER 1). WALLIS. [CHAP. VL received b}' a wharfinger directed by him to receive them. But the question is, wbetlicr tliere has been an acceptance to satisfy the statute. There are various authorities to show that, for the purpose of an accept- ance witliiu the statute, the vendee must have had the o[)portunity of exercising his judgment with respect to the article sent. Morton v. Tibbett, 15 Q. B. 428, has been cited as an authority to the contrary ; but in reality- that case decides no more than this, that where the pur- chaser of goods takes upon himself to exercise a dominion over them, and deals with them in a manner inconsistent with the right of property being in the vendor, that is evidence to justify the jury in finding that the vendee has accepted the goods and actually received the same. The court indeed there say that there may be an acceptance and receipt within the statute, although the vendee has had no opportunity of exam- ining the goods, and although he has done nothing to preclude himself from objecting that they do not correspond with the contract. But in ray opinion an acceptance to satisfy the statute must be something more than a mere receipt ; it means some act done after the vendee has exer- cised or had the means of exercising his right of rejection. Rule discharged.^ WILLIAM PARKER v. HENRY WALLIS and ABRAHAM WALLIS. In the Queen's Bench, May 5, 1855. [Reported in 5 Ellis ^- Blackburn, 21.] Count alleging that plaintiff sold to defendants turnip-seed then growing, to be harvested and thrashed by plaintiff and then delivez'ed to defendants as the}' should direct ; that the seed was harvested and thrashed, and plaintiff delivered part which was accepted and actually received by the defendants. General averments of performance. Breaches ; that defendants would not accept the residue, nor pay for the part received. Pleas : amongst others, that plaintiff did not sell to the defendants, nor did they bu}' of the plaintiff the seed ; and that the plaintiff did not deliver, nor did the defendants accept the part. Issues thereon. On the trial before Wightman, J., at the last spring assizes for Suf- folk, the plaintiff gave evidence by which it appeared that the plaintiff was a farmer, and the defendants were in partnership as seed and corn merchants at Ipswich. On the 21st June, 1854, the plaintiff and the defendants being at Bui*y market verbally made a contract for the sale of seed of the value exceeding £10 to the effect set forth in the count; and the defendants named the railway to Ipswich as one mode by which 1 Pollock, Alderson, and Platt, BB., delivered brief concurriug opinions SECT, v.] PARKER V. WALLIS. 8G5 the seed might, when harvested, be sent to them at Ipswich, In July the seed was harvested and thrashed ; and on the 24th Jul}- twenty sacks of the seed were sent by the plaintiff b}' railway to the defendants at Ipswich. On Wednesday, 26th July, the twenty sacks arrived at Ipswich. On that same day the plaintiff and the defendant Abraham Wallis were both at Bury market. Tlie defendant Abraham Wallis said to the plaintiff that a messenger had just come up from Ipswich from his brother Henry, to say that the seed sent by plaintiff had just arrived and was out of condition. The plaintiff said that the seed was in good condition, and so Abraham Wallis would find when he examined it. Abraham Wallis said he could say no more, as he had not seen it him- self. The only evidence of this conversation was given by the plaintiff; and according to his recollection nothing more then passed. The fol- lowing correspondence was given in evidence : — Defendants to plaintiff: — Ipswich, 7 Mo. 28. Respected Friend, — A personal inspection of the twenty sacks turnip-seed fully confirmed what we said on Wednesday. It is both hot and mouldy ; and we must beg to decline it altogether. It now waits your instructions for removal. PlaintifT to defendants : — MiLDENHALL, 31st July, 1854. The twenty combes of turnip-seed was in good condition this day week when delivered, as good as any that I have delivered this season, which I have witness to prove, and I duly advised j^ou of it ; and as to what may have happened to it since, of course I cannot be accountable for. I have the remaining forty combes ready for delivery, waiting your order. Defendants to plaintiff : — IrswiCH, 8 Mo. 1, 1854. As 3'ou have failed to fulfil your contract, we shall purchase seed else- where. The twenty sacks which you authorized us to receive for 30U, and to lay out thin in consequence of its being hot and mouldy, we have now directed to be returned to the Eastern Counties Railway Station to wait 30ur orders, and must request you to return and empty sacks. Plaintiff's attorney to defendants (extract) : — Gentlemen, — I am instructed by Mr. William Parker of Mildenhall to apply to you for payment of the turnip seed you purchased of him, twenty sacks of which have been delivered, and the remainder has been for some time past waiting your directions and standing at your expense. The authority you alluded to in your letter of the 1st instant is most positively denied by my client ; and the dale of the delivery to you, and of the letters passing between you and Mr. Parker, plainly show that such an authority could never have been given, and certainly never wag contemplated by my client. 8G6 PARKER V. WALLIS. [CIIAP. VI. Defendants to plaintiff's attorney (extract) : — Ipswich, 8 Mo. 8, 1854. In reply to thy letter we beg to say that, as Mr. Parker's memory seems so very forgetful, we fortunately are able to remember for him ; and we have full and suthcient witness to the authority upon which we acted? and to which allusion is made in our letter of the 1st instant, in our young man who stood by and heard the order given to us to receive it on his account and lay it out thin to cool. The rest of the evidence of the plaintiff went to show that the seed in point of fact was good when it went to the railway ; that the condi- tion of the seed can easily be ascertained without spreading it out thin ; and that prices had fallen ver}' much between the 21st June and the 26th July. The defendants claimed a nonsuit on the ground that there was no evidence to satisfy' the Statute of Frauds. The learned judge directed a nonsuit, with leave to move to enter a verdict for £140 if there was evidence of an acceptance and actual receipt of any part of the turnip- seed. D. Power and II. Mills now showed cause. O" JSIalky and Worlledge., contra. Lord Campbell, C. J. I do not think we should be justified in mak- ing the rule absolute to enter a verdict for the plaintiff ; for whether the evidence would have warranted the }\.\vy in finding that there was an acceptance is at least very doubtful ; but at the same time I cannot say that tliere is not some evidence to go to the jur}-. Of the law there is no doubt. To make an acceptance, it is not neces- sary' that the vendee should have acted so as to preclude himself from afterwards making objection to the quality of the article delivered ; but he must have done something indicating that he has accepted part of the goods and taken to them as owner. This rha}' be indicated by his conduct, as when he does any act which would be justified if he was the owner of the goods and not otherwise. In such a case the vendee doing that act is supposed to have accepted the goods and become owner of them. Thus detention of the goods for a long and unreasonable time by the vendee is evidence that he has accepted them ; but in the present case there was no detention of that kind before the letter of the 28th of July ; and detention after that letter, stating that the seed was rejected and waited the plaintiff's order for its removal, amounted to nothing. But then it appears by the defendants' own letters that they had spread the seed out thin. That is an act of a doubtful character. If the seed was, as the defendants assert, hot and mould}', I should say that spread- ing it out thin was an act done by the vendee, not as an act of owner- ship, but for the benefit of the vendor ; but in this case there was evidence that the seed was good. Whether it was an act of acceptance depends on whether it was an act done by the defendants as owners of the goods, or an act done for the benefit of the article by the disappointed SECT, v.] MARVIN V. WALLIS. 867 vendee acting for the benefit of the vendor. On the evidence it is left in doubt which it was ; and I think that was a question for the jur}'. I think, therefore, that the rule should be moulded, and made absolute for a new trial. Crompton, J. The question is, whether there is any evidence that the defendants in spreading out this seed thin acted as owners receiving it under tlie parol contract. Of the fact that they did so spread it out there is no doubt ; but it is an act explainable on three suppositions : First, the}' may have spread it out bj- the authority of the vendor, the plaintiff; second, they maj- have done it for the benefit of the seed, a perishable article in such a condition as to render the step proper ; third, the}' ma}' have done the act as owners, spreading it out for their own convenience ; for it is not denied that it was a more extensive act than was necessary for mere examination to see if it was good. Now there was contradictory evidence as to whether the plaintifl" had authorized it ; so the plaintiff was not bound by that first explanation, unless the jury found that there was authority. Then there was evidence that the seed was in such a condition that the defendants could not have done the act for its benefit ; so that the plaintiff was not bound by that explana- tion. If these two were negatived by the jury, there remained the third explanation only ; so that I cannot say that there is no evidence of an acceptance ; but I think that the court do right to mould the rule, as the evidence is not sufficiently satisfactory to justify us in entering a verdict. Hide absolute for a new tinal} MARVIN V. WALLIS. In the Queen's Bench, June o, 1856. [Reported in G Ellis ^- Blackburn, 726.] Action for money payable by defendant to plaintiff for horses, mares, and geldings, bargained and sold, and sold and delivered by plaintiff to defendant ; and on accounts stated. Plea, never indebted, Issue thereon. On the trial before Lord Campbell, C. J., at the last AVarwickshire assizes, it appeared that the action was brought to recover the price of a horse. It was agreed that there had been a complete verbal bargain for the sale of the horse by the plaintiff to the defendant for a price above £10, and that about a fortnight afterwards the plaintiff sent the horse to the defendant, who refused to take or pay for him ; alleging that tlic horse had been ill-used in the interval. The plaintiff's evi- dence was that the bargain was complete for immediate delivery ; that after it was complete the plaintiff asked the defendant to lend him the * WiGiiTMAN and Erle, JJ., delivered concurring opinions. 868 MARVIN V. WALLIS. [cHAP. VI. horse for a few weeks till ho got another, to whieli the defendant agreed if the plaintirt" would take care of it ; and that in consequence the plaintiff kept the horse from that time, not as vendor but as borrower of the horse. There was no part payment, nor any memorandum in writing. It was objected that there was no evidence to go to the jury of any acceptance and actual receipt of the horse. The Lord Chief Justice refused to stop the case. The defendant then gave evidence, according to which the original verbal bargain was that the horse should not be delivered for a month ; and the plaintiff retained posses- sion, not as a borrower, but in virtue of the original bargain. The Lord Chief Justice left the question to the jury, whether the verbal contract for the sale of the horse was complete before there was any agreement about the horse being retained by the plaintiff, and the horse was lent to the plaintiff by the defendant as his owner; or whether the retainer of the horse was part of the bargain. The jury found that the contract was complete before the permission to keep the horse was given to the plaintiff, and that the horse was lent by the defendant as his owner. ■ The Lord Chief Justice then directed a verdict for the plaintiff, with leave to move as after mentioned. Hayes, Scrjt., and JBiftleston showed cause. Jlellor and Field, in support of the rule. Coleridge, J. I am of opinion that we ought to discharge this rule. The question is, whether on the facts found by the jury the Statute of Frauds is satisfied, and whether there is any evidence for that finding. The Statute of Frauds requires an actual receipt, which implies delivery and acceptance. It is admitted that if there be an actual visible pos- session in the vendee for a single moment, that is enough : the question cannot turn on time. It must also be admitted that it is enough if a third party has such possession for the vendee. It is said that nothing short of that will do ; and as I understand Mr. Field he contends that there must be some positive act, and that without that, words alone will not satisfy the statute. Here it is found that the bargain was complete, and that after that the vendor asked the vendee to lend him the horse for a specific purpose, to which the vendee assented. The vendor retains the apparent possession, but holds for the vendee, unless there be a distinction between this state of things and what is admitted to be sufficient to satisfy the Statute of Frauds. Try then how that is. Must there be an actual transfer? The case of Elmore V. Stone, 1 Taunt. 458, furnishes an answer to that question ; for there, there was a removal of the horse from one stable of the vendor to an- other stable of the vendor ; in the first of these the vendor kept his own horses, in the other the horses belonging to other people : so that the horse still continued in his apparent possession, but the character of the possession was altered. So here there is the same apparent possession throughout, but the evidence shows that its character was changed. Much has been said as to whether the lien here was retained SECT, v.] NICHOLSON V. BOWER. 869 or not ; but it seems to me that this is not material to tlie argument, and tliat tlie legal result arises from tlie preceding part of tlie transac- tion. Had the plaintiff retained the horse in the character of an unpaid vendor, there would not have been a delivery ; but the verdict nega- tives that supposition. Mule discharged} NICHOLSON AND Another, Assignees op William Pavitt, Daniel Pavitt, and George Pavitt, Bankrupts, v. BOWER. Jx: the Queen's Bench, November 18, 1858. [Reported in 1 Ellis §• Ellis, 172.] Fek^ned issue to try whether " certain wheat which was on the 11th day of Ma}-, 1857, lying in the warehouse of the Eastern Counties Railway Company at Brick Lane station, and the delivery of which to the said bankrupts or their said assignees was afterwards stopped by the defendant, was at the time of such stoppage the property of the. said bankrupts or their said assignees as against the defendant." On the trial before Erie, J., at the London sittings after last Trinity term, it appeared that on 4th Ma}-, 1858, the defendant, who was a corn merchant at Peterborough, sold at London to Pavitt & Co., who were millers carrying on business in London, 141 quarters of wheat to be delivered in London. The defendant sent up the wheat from Peterborough in two parcels, on the 7th and 8th of May, by the Eastern Counties Railway to their station at Brick Lane, consigned to Pavitt & Co., and wrote to them giving them notice of its having been so sent, and requesting their " immediate instructions for re- moval." The wheat was warehoused by the company and entered by them in their books as follows: "8th May, Peterborough, from S. Bower, for Messrs. Pavitt & Co., Brick Lane station, carriage paid." The usual course of business of the company in warehousing grain is to keep it, if required, for fourteen days free of charge, at the end of which time it is to be taken away by the consignee or delivered by the company to him at his expense. It is also usual in the corn trade, when corn is warehoused for the consignee, before finally accepting it to take a sample from the bulk as delivered at the warehouse, and compare it with the sample by which it was purchased. On Friday the 8th ]\ray, Pavitt & Co. sent their carman to the station for a bulk sample of the wheat, which he brought back. On tlie morning of Saturday the 9th May, George Pavitt, one of the partners, examined it, and said, " Do not work it at present ; " "to work" being explained at tlie trial to moan to cart it home. On the same day Pavitt & Co. being in embarrassed circumstances decided upon calling a meeting 1 Erle and Crompton, JJ., and Lord C.vMPnELi-, C J., delivered concurring opiuioDS. 870 CUSACK V. ROBINSON. [CHAP. VI. of their creditors on Monday, May lltli, and gave iinincdiate notice to the creditors. The defendant in consequence came to Pavitt & Co. on that day and asked tliem for an order for the wheat, which they were about to give when some of the other creditors present interfered. The defendant afterwards sent to the railway station and stopped the wheat, directing the company to hold it to his order, which they according!}' did. The defendant's witnesses stated, which George Pavitt denied, that George Pavitt had told the defendant on the Monday, 11th May, that he had refused the wheat on 9th May because it was not equal to sample. It was admitted that the wheat was actually equal to sample. The jury, in answer to a question of the learned judge, found that George Pavitt had told the defendant that he refused the wheat because it was not according to sample ; but that it was not really refused by him on that ground. A verdict was entered for the plain- tiffs, with leave to move to enter it for the defendant, either if there had been no acceptance of the wheat by the bankrupts within the Statute of Frauds, or if the transitus of the wheat was not .^t an end when it was stopped by the defendant. JBovill now showed cause. SJcinner and Field, contra. Erle, J. I think that the plaintiffs have failed to show an accept- ance of part of the goods by the vendee sufficient to satisf}- the Stat- ute of Frauds. When the goods arrived at the warehouse ready to be delivered to the vendee, he had power to inspect a bulk sample before accepting. He does inspect a sample, and apparently found that it corresponded; but at that very instant he says, "Do not work it at present," meaning, as I think, "I shall hold my hands in respect of this transaction ; because, unless I succeed in making arrangements with m}' creditors, this corn ought to go back to the consignor." On the next working da}' he actually does that which is equivalent to giv- ing notice to the consignor to take it back. That notice he had a right to give, if he had not accepted ; and I think that upon the evidence he had purposely abstained from accepting. Rule absolute.^ CUSACK AND Others v. ROBINSON. In the Queen's Bench, Mat 25, 18G1. [Reported in 1 Best Sf Smith, 299.] Declaration for goods sold and delivered, and goods bargained and sold. Plea, never indebted. At the trial before Blackburn, J., at ^ Lord Campbell, C.J., and Wightman and Hill, JJ., delivered concurring opiniona SECT, v.] CUSACK V. KOBINSON. 871 the Liverpool winter assizes in 1860, it appeared that the defendant, who was a London merchant, on the 24th October, 1860, at Liverpool called on the plaintiffs, who are importers of Canadian produce, and said he wanted to buy from 150 to 200 firkins Canadian butter. He then went with one of the plaintiffs to their cellar, where he was shown a lot of 156 firkins of butter, '•' ex Bohemian," belonging to the plaintiflTs, which he then had the opportunit}' of inspecting; and in fact he did open and inspect six of the firkins in that lot. After that examination, they went to another cellar to see other butter, which however did not suit the defendant. At a later period of the same day the plain- tifl!"s and the defendant made a verbal agreement by which the defendant agreed to buy that specific lot of 156 firkins at 77s. per cwt. When the price had been agreed on, the defendant took a card on which his name and address in London were written, "Edmund Robinson, 1 Wellington Street, London Bridge, London," and wrote on it " 156 firkins butter to be deUvered at Fenning's Wharf, Tooley Street." He gave this to the plaintiffs, and at the same time said that his agents Messrs. Clibborn, at Liverpool, would give directions how the goods were to be forwarded to Fenning's Wharf. The plaintiffs by Clib- born's directions delivered the butter to Pickford's carts to be for- warded to the defendant at Fenning's Wharf. The plaintiffs sent an invoice dated the 25t!i October, 1860, to the address on the defendant's card. They received in answer a letter purporting to come from a clerk in the defendant's office, acknowledging the receipt of the invoice, and stating that on the defendant's return he would no doubt attend to it. There was no evidence that the writer of this letter had any authority to sign a memorandum of a contract. On the 27th October the plaintiffs in Liverpool received a telegram from the defendant in London, in eflfect asserting that the butters had been sold by the plain- tiflTs sul)ject to a warranty that the}- were equal to a sample, but that they were not equal to sample, and therefore w^ould be returned. The plaintiffs replied by telegram that there was no such warrant}', and they must be kept. A clerk at Fenning's Wharf proved that Messrs. Fenning stored goods for their customers, and had a butter warehouse ; that the defendant had used the warehouse for fifteen j-ears, and was in the hal)it of keeping his butters there till he sold them. On the 26th October Pickford & Co. had delivered a part of the 156 firkins in question at the warehouse, and delivered the residue on the morning of the 27th October. The witness could not say whether any one came to inspect them or not, but he proved that they were delivered up by Fenning to Pickford & Co. under a deUvory order from the defendant dated 27t,h October. The defendant's counsel admitted that it must be taken that tlie sale was not subject to any warranty ; but ol)jected that the price of the goods exceeded £10, and that there was nothing proved to satisfy the requisitions of the Statute of Frauds. The verdict was entered for the plaintiffs for £420 10s. Id., with leave to the de- fendant to move to enter a nonsuit, if there was no evidence proper to 872 CUSACK V. ROBINSON. [CHAP. VI. he left to the juiy either of a memorandum of the contract or of an acceptance and actual receipt of the goods. Hellish and Quain showed cause. Millward, in support of the rule. Cur. adv. vult. The judgment of the court was now delivered by Blackburx, J. (After fully stating the facts his Lordship proceeded.) It was not contended that there was any sufficient memorandum in writing in the present case ; but it was contended that there was suffi- cient evidence that the defendant had accepted the goods sold and actually received the same ; and on consideration we are of that opinion. The words of the statute are express that there must be an accept- ance of the goods or part of them, as well as an actual receipt; and the authorities are very numerous to show that both these requisites must exist, or else the statute is not satisfied. In the recent case of Nicholson v. Bower, 1 E. & E. 172, which was cited for the defendant, I'll quarters of wheat were sent by a railwa}-, addressed to the ven- dees. The}- arrived at their destination, and were there warehoused by the railway company under circumstances that might have been held to put an end to the unpaid vendor's rights. But the contract was not originall}' a sale of specific wheat, and the vendees had never agreed to take those particular quarters of wheat : on the contrary it was shown to be usual, before accepting wheat thus warehoused, to compare a sample of the wheat with the sample by which it was sold ; and it appeared that the vendees, knowing that thej^ were in embar- rassed circumstances, purposely abstained from accepting the goods ; and each of the judges mentions that fact as the ground of their de- cision. In Meredith v. Meigh, 2 E. & B. 364, the goods, which were not specified in the original contract, had been selected by the vendor and put on board ship by the directions of the vendee, so that ihcy were in the hands of a carrier to convc}' them from the vendor to the vendee. It was there held, in conformit}' with Hanson v. Armitage, 5 B. & Aid. 557, that the cari'ier, though named bj- the vendee, had no authorit}' to accept the goods. And in this we quite agree ; for though the selection of the goods by the vendor, and putting them in transit, would but for the statute have been a sufficient delivery to vest the property in the vendee, it could not be said that the selection by the vendor, or the receipt by the carrier, was an acceptance of those particular goods by the vendee. In Baldey v. Parker, 2 B. & C. 37, which was much relied on by Mr. Millward in arguing in support of this rule, the ground of the decision was that pointed out by Holroyd, J., who says (p. 44) : " Upon a sale of specific goods for a specific price, by parting with the possession the seller parts with his lien. The statute contemplates such a parting with the possession ; and therefore as long as the seller preserves his control over the goods so as to retain his lien, he prevents the vendee SECT, v.] CUSACK V. KOBINSON. 873 from accepting and receiving them as bis own within the meaning of the statute." The principle here laid down is, that there cannot be an actual receipt by the vendee so long as the goods continue in the pos- session of the seller as unpaid vendor so as to preserve his lien ; and it has been repeatedly recognized. But though the goods remain in the personal possession of the vendor, yet if it is agreed between the vendor and the vendee that tiie possession shall thenceforth be kept, not as vendor, but as bailee for the purchaser, the right of lien is gone, and then there is a sufficient receipt to satisfy the statute. Marvin v. Wallis, G E. & B. 726, Beaumont v. Brengeri, 5 C. B. 301. In both of these cases the specific chattel sold was ascertained, and there ap- pear to have been acts indicating acceptance subsequent to the agree- ment which changed the nature of the possession. In the present case there was ample evidence that the goods when placed in Fenning's Wharf were put under the control of the defend- ant to await his further directions, so as to put an end to an}' right of the plaintiffs as unpaid vendors, as much as the change in the nature of the possession did in the cases cited. There was also sufficient evi- dence that the defendant had at Liverpool selected these specific 156 firkins of butter as those which he then agreed to take as his property as the goods sold, and that he directed those specific firkins to be sent to Loudon. This was certainlj- evidence of an acceptance ; and the onl}' remaining question is, whether it is necessarj- that the acceptance should follow or be contemporaneous with the receipt, or whether an acceptance before the receipt is not sufficient. In Saunders v. Topp, 4 Exch. 390, which is the case in which the facts approach nearest to the present case, the defendant had, according to the finding of the jury, agreed to bu}' from the plaintiff forty-five couple of sheep, which the defendant, the purchaser, had himself selected, and the plaintiff had by his directions put them in the defendant's field. Had the case stopped there, it would have been identical with the present. But there was in addition some evidence that the defendant, after seeing them in the field, counted them, and said it was all right ; and as this was some evidence of an acceptance after the receipt, it became un- necessar}' to decide whether the acceptance under the statute must follow tiie deliver}'. Parke, B., from the report of his observations during the argument, seems to have attached much importance to the selection of particular sheep b}' the defendant; but in his judgment he abstains from deciding on that ground, though certainl}' not expressing an}- opinion that the acceptance must be subsequent to the delivery. The other three Barons — Alderson, Rolfe, and Piatt — express an inclination of o|)inion that it is necessary under tlie statute that the acceptance should be subsequent to or contemporaneous with tlic re- ceipt; but the}' expressly abstain from deciding on that ground. In the elaborate judgment of Lord Campbell in Morton v. Tibbctt, 15 Q- B. 428, in which the nature of an acceptance and actual receipt suffi- cient to satisfy the statute is fully expounded, he says (p. 434) : " The 874 KIBBLE V. GOUGH. [CIIAP. VI. acceptance is to be something which is to precede oi" at any rate to be contemporaneous with the actual receipt of the goods, and is not to be a subsequent act after the goods have been actually received, weighed, measured, or examined. The intention of the Legislature seems to have been that the contract should not be good unless partially exe- cuted ; and it is partially executed if, after the vendee has finally agi-eed on the specific articles which he is to take under the contract, the vendor by the vendee's directions parts with the possession, and puts them under the control of the vendee, so as to put a complete end to all the rights of the unpaid vendor as such. We think therefore that there is nothing in the nature of the enactment to imply an inten- tion, which the Legislature has certainly not in terms expressed, that an acceptance prior to the receipt will not suffice. There is no decision putting this construction on the statute, and we do not think we ought so to construe it. We are therefore of opinion that there was evidence in this case to satisfy the statute, and that the rule must be discharged. Hule discharged KIBBLE V. GOUGH. In the Common Pleas Division, Court of Appeal, February 14, 15, 1878. [Reported in 38 Laiv Times Reports, 204.] Appeal from a decision of the Common Pleas Division. Defendant, a maltster, agreed to purchase of the plaintiff, a farmer, a quantity of barley, a sample of which was produced, but which was not dressed, at 35s. a quarter, on condition that it should be well dressed. The plain- tiff" promised that it should be dressed as well as machine could do it. A few days afterwards the plaintiff sent to the defendant for some sacks in which to send the barle}', and a quantity were sent to him in the ab- sence of the defendant by the defendant's foreman. On the same day the plaintiff" sent in the first instalment of barley, 13 qrs., which were received by the defendant's foreman, who examined the bark}', and who returned a receipt with the words " not equal to sample." The defendant returned home late in the evening and was informed of the delivery of the barley, and on the following morning inspected the barley and wrote to the plaintiff in the following terms : " I must refuse the barley, and do not send any more. It is full of grown corns and very spiky, and a lot of thin, and is not dressed as well as machine can do it." The plaintiff", however, sent a second instalment, and also a third, which were also received, in the absence of the defendant, by his fore- man, who returned a receipt for each with the words " not dressed SECT, v.] KIBBLE V. GOUGH. 875 well," for the second instalment, and " not equal to sample," for the third. The defendant wrote to the plaintiff and asked him to take back the barle}', but the plaintiff refused to do so. The defendant refused to pay for the barle}', and wrote to the plain- tiff that it was standing in the defendant's warehouse, at the plaintiff's risk, and subject to hire for warehousing, etc. The plaintiff brought an action against the defendant for goods sold and delivered, and at the trial at the Aylesbury Summer Assizes, 1877, the judge, Pollock, B., left the following questions to the jurj- : — Was there a contract? Was there acceptance by the defendant of part of the barley ? and was the barley equal to sample and properly dressed ? The jury found in the affirmative for the plaintiff. On Nov. 6 the Common Pleas Division (Lord Coleridge, C. J., and Denman, J.) granted a rule nisi for a new trial on the grounds (1) of misdirection by the learned judge in holding that there was evidence of acceptance of the barley by the defendant for the jurj^, and in leaving to the jury the question whether the barley delivered to the defendant was equal to sample and jdressed according to contract ; (2) That the verdict was against the weight of evidence on the questions left to the jury. On motion before Grove and Lindley, JJ., to make the rule absolute, the Court refused, and the defendant appealed against this decision. Mello)\ Q. C. (with him Hensman), for defendant. Laiorence, Q. C. (with him Graham), for the plaintiff. Bramwell, L. J. 1 am of opinion that the judgment of the court be- low must be aflirmed. The first question is on the Statute of Frauds, was there part delivery, and did the defendant actually receive and accept part of these goods? I do not like to lay down a general rule ; but this was undoubtedly a sale of an ascertained quantity of goods. The defendant agreed to purchase all the plaintiff's year's growth of barlc}", and it was therefore a sale of specific goods, only there was this proviso, that the barley should be dressed in a particular way ; but for that stipulation it would certainl}' have passed at once. There was liere no contract in writing. There is no doubt about the deliver}' of the first thirteen quarters; was there an acceptance of them? I will not say that the decision in Morton v. Tibbett {ubi sup.) was wrong ; on the contrary, I think it was right. A man may accept goods with- out losing his right of objection to them ; there must be such an accept- ance to satisfy the statute as amounts to a recognition of the contract between the parties ; and I can quite understand that tliere ma}' be a delivery without an acceptance by the vendee, and without a recognition on his part that he has bought the goods. But in this case the goods had been brought to the defendant's warehouse, and were received, not by the defendant himself, but by a person in whom, as the evidence •bowed, he put trust and confidence, and this person compared the barley 876 KIBBLE V. GOUGH. [CHAP. VI. with the sample and took it in. There is no doubt whatever that he received it. Suppose that the defendant himself had been present, the question would be just the same, and it can make no difference that his manager received the goods. It is to be remembered that these were specific goods. I am of opinion that there is sufficient evidence of ac- ceptance. The defendant might have complained just as though there had been a contract in writing, if the goods were not up to sample. There may be defects in goods which are not ascertainable on inspec- tion, or which require an elaborate inspection, or which require the goods to be used before the defects can be discovered, so as not to pre- clude sufficient evidence to take the case out of the statute. Mr. Mellor says that an action for goods sold and delivered will not lie here, be- cause the property did not pass by the sale, for there was something remaining to be done, — the wheat was to be dressed. Now, there are cases which show that where anything remains to be done to ascertained property the property does not pass, but as soon as it has been done then it has passed. Suppose a man sees a watch in a shop, and says to the shoplveeper, " If you clean this watch, I will buy it of you for £8." Whose watch is it when it is cleaned? I say that, in such a case, the money must be paid to the seller, or, if the vendee refuses, the seller can maintain an action for goods bargained and sold. Here no furtlier delivery could be made. The second and third parcels have also passed to the defendant ; and therefore the action for goods sold and delivered is good, and this judgment must be affirmed. Brett, L. J. In cases where a contract is made by inspection of sample without the bulk being produced, the sale is a sale according to sample ; but it is different when an inspection of the bulk is given as well as of the sample, — then it is a sale of the bulk, and there can be no return of the goods ; and, when a man undertakes to do something to the goods he is selling, then that becomes a part of the contract. In this case the goods were sold as equal to the sample, and there was a power to refuse ; and there was also an undertaking on the part of the vendor to dress the barley. The purchaser had therefore a right to see if tlie barley was equal to the sample and if it was properlj' dressed. The first lot was sent, and the foreman of the defendant was present when it was sent, and did take the deliver}' of it, and actualU' received it as goods sent under the contract. The defence here seems to me the same as if the master had been there at the time and had said, " I will reserve my right of inspection until to-morrow." The question for us here is. Is such an acceptance sufficient to make the contract binding under the Statute of Frauds? There must be an acceptance and an actual receipt ; no absolute acceptance, but an acceptance which could not have been made except on admission of the contract and the goods sent under it. I am of opinion that there was a sufficient acceptance under the Statute of Frauds, although there is a power of rejection. That seems to me to be the decision in Morton v. Tibbett, sjtpra, and in Cusack v. Robinson, 4 L. T, Rep. N. s. 506, 30 L. J. 261 Q. B., Sect, v.] page v. morgan. 877 1 B. & S. 299, Blackburn, J., cites Morton v. Tibbett, supra, with approbation. But the most remarkable approbation of Morton v. Tib- bett, siqyra, is by Crompton, J., in Currie v. Anderson, 29 L. J. n. s. 87 Q. B., when citing from Lord Campbell's judgment, " After a care- ful review of the cases, the court came to the conclusion (which in this court must be considered to be the law of the land) that, in order to make an acceptance and receipt within the Statute of Frauds, it was not necessary that the vendee should have done anything to preclude himself from objecting to the goods." That was the decision in Morton V. Tibbett ; and from the discussion of to-day I see reason to be more satisfied than ever with it. Having considered all these cases, I think the decision in Morton v. Tibbett, supi-a, is right, and that such an acceptance is sufficient, altliough the purchaser in certain cases may still have his right of rejection. Here there was sufficient receipt and acceptance to pass the property, and there was a binding contract, and the question is. Can an action be maintained for the price of the goods? Now, the first lot was actually delivered, and I shall use the term " actually received." The goods were sold by valid contract, actually delivered and received, and after this the vendee objects to them. If they had not been equal to the sample I say that it was not even then too late to object ; but they were equal to the sample, and they were dressed. Now, where by a contract under which there is a right to reject, and there has been an actual delivery and an actual receipt, and the state of the goods is such as to give no right to reject, any attempt to reject them without such right is futile, and the goods are goods not only sold, but sold and delivered ; and this, I think, is the case here. Now, as to the evidence of the dressing of the barley. Experts were called who said that they dressed the barlej^ over again and made it look better ; but the jury here was a jury of agriculturists, and they saw the sample and understood what they were looking at. I am of opinion that the judgnaent of the court below must be affirmed on both points.^ PAGE y. MORGAN. In the Queen's Bench Division, Court of Appeal, June 10, 1885. Reported in 15 Queen's Bench-Division, 228.] Appeal from the judgment of the Queen's Bench Division refusing an application for a new trial, or to enter judgment for the defendant. The action was for the price of wheat, or in the alternative for damages for non-acceptance of the wheat. Tlie statement of defence denied the contract of purchase, alle<^'-ed ^ Cotton, L. J., delivered a brief concurring opinion. 878 PAGE V. MORGAN. [CHAP. VI. that tlie wheat was sold by sample, and the bulk was not equal to the sample, and set up non-compliance with the Statute of Frauds. The case was tried before Bulwer, Q. C, sitting as commissioner at the Chelmsford Summer Assizes, 1884, when the facts were as follows : — The defendant, a miller, bought of the plaintiff by oral contract through the plaintiff's agent eighty-eight quarters of wheat. The sale was by sample. The wheat was shipped by the plaintiff's agent on a barge for carriage to the defendant's mill, which was upon a navigable canal. The barge arrived at the mill on the evening of Tuesday the 25th of March, and at eight o'clock on the morning of the 26th some of the sacks containing the wheat were, by direction of the defendant's foreman, hoisted up out of the barge on to the mill and examined by him. After twenty-four sacks had been hoisted up and examined, the foreman sent for the defendant, who came to the mill and inspected the contents of the sacks already delivered, and ordered some more to be sent up for examination, and after having examined thirt^^-eight sacks in all, he at nine o'clock told the bargeman to send up no more, as the wheat, he said, was not equal to sample. The defendant then on the same day went off to see the plaintiff's agent at a neighboring market town, and told him that the wheat was not equal to sample, and that he should not take it. Some days afterwards, the exact interval, however, was not stated, the wheat taken into the mill was returned by defend- ant's order to the barge, which remained at the defendant's mill with the wheat in it, the plaintiff refusing to take the wheat away, for seven weeks and until after action was brought, when the wheat was sold by the order of a judge at chambers, and the proceeds paid into court to abide the event of the action. The learned commissioner directed the jury, on tlie authority of Mor- ton V. Tibbett, 15 Q. B. 428, and Kibble v. Gough, 38 L. T. (n. s.) 204, that there was evidence of an acceptance by the defendant sufficient to constitute a contract within the 17th section of the Statute of Frauds, although the defendant was not precluded from rejecting the wheat if not equal to sample. The jury found that the wheat was equal to sam- ple, and that the defendant had accepted it within the meaning of the 17th section of the Statute of Frauds, and accordingly gave a verdict for the plaintiff. A rule for a new trial, or to enter judgment for the defendant, was moved for on the ground that there was no evidence for the jury of an acceptance of the wheat by the defendant to satisfy the statute, but the Queen's Bench Division (Lord Coleridge, C. J., and Cave, J.) refused the application. Morten {^fuiyJuj, Q. C, with him), for the defendant. Fhilbricl; Q. C, and R. Vaughan Williams, for the plaintiff. Brett, M. R. It seems to me that tlie case of Kibble v. Gough, supra, lays down the governing principle with regard to the question whether there is evidence of an acceptance to satisfy the 17th section SECT. V.j PAGE V. MORGAN, 879 of the Statute of Frauds. It was there pointed out that there must be under the statute both an acceptance and actual receipt, but such acceptance need not be an absolute acceptance ; all that is neces- sary is an acceptance which could not have been made except upon admission that there was a contract, and that the goods were sent to fulfil that contract. Cotton, L. J., in giving judgment in that case, said: " All that is wanted is a receipt and such an acceptance of the goods as shows that it has regard to the contract, but the contract may yet be left open to objection ; so that it would not preclude a man fi'oni exercising such a power of rejection. I think that in this case enough had been done to satisfy the statute." Now what had been done in that case ? The goods had been taken into the defendant's warehouse and kept for some time, though not so long as to make it unreasonable that the defendant should exercise his right of rejection if the goods had not been according to contract, and the defendant had inspected the goods. The}' therefore had been delivered and actual possession of them had been taken, and the}' had been dealt with by the defendant for the purposes of the contract. It was held that under those circum- stances what had been done in respect to the goods by the defendant must be considered as having been done with regard to a contract for the purchase of the goods, and as amounting to a recognition of the existence of such contract, and that therefore, though the defendant might still have a right to reject the goods if not equal to sample, there was evidence on which the jur}' might find that the defendant had ac- cepted the goods within the meaning of the statute. That being the law as laid down by that decision, what was the evidence on the ques- tion of acceptance in the present case? The wheat was sent to the defendant's mill in a barge, which was brought under the mill in the evening. The next morning a considerable quantity of wheat was taken up by the defendant's servants into the defendant's mill and remained there some time more or less until the defendant had opened the sacks and examined their contents to see if they corresponded with the sam- ple. How could the defendant have these sacks taken into his mill and there opened and examined without a recognition of the existence of a contract entitling him so to deal with them? How could any reason- able men come to any other conclusion from his dealing with them than that he had made a contract of purchase with regard to them, and that the goods were delivered to and received by him under such contract, and examined by iiim to see if they were according to the contract? It seems to me clear that under these circumstances there was evidence for the jury of an acceptance within the meaning of the statute. I can conceive of man}' cases in which what is done with regard to the deliv- ery and receipt of the goods may not afford evidence of an acceptance. Suppose that, goods being taken into the defendant's warehouse by the defendant's servants, directly he sees them, instead of examining them, he orders them to be turned out or refuses to have anything to do with them. There would there be an actual delivery, but there would be no 880 TAYLOK V. SMITH. [CHAP. VI. acceptance of the goods, for it would be quite consistent with what was done tliat he entirely repudiated any contract for the purchase of the same. I rely for the purposes of ray judgment in the present case on the fact that the defendant examined the goods to see if they agreed with the sample. I do not see how it is possible to come to any other conclusion with regard to that fact than that it was a dealing with the goods involving an admission that there was a contract. It appears to me that, having regard to the case of Kibble v. Gough, which is an authority binding on us, there was clearly evidence in this case for the jury of an acceptance, and that upon such evi- dence there was only one conclusion to which they reasonably could come. The counsel for the defendant placed reliance on the case of Rickard v. Moore, 38 L. T. (n. s.) 841.^ It is alleged that in that case Lord Bramwell doubted the correctness of what he had said in the previous case of Kibble v. Gough, siq^ra. However that may be, it is quite clear that that case cannot overrule Kibble v. Gough, supra. For these reasons I am of opinion that this appeal must be dismissed. J;>pea? dismissed.'' TAYLOR V. SMITH. In The Queen's Bench Division, Court of Appeal, February 26, 1892. [Reported in [1893] 2 Queen's Bench, 65.] Lord Herschell. This action is brought in respect of an alleged contract for the sale of deals, and the question is whether there is a contract complying with the requisitions of the 17th section of the Statute of Frauds. The bargain was made by word of mouth. An invoice was made out which was dated October 21, but not sent to the defendant till October 30, which was in these terms: "Mr. John 1 That was an action for the price of wool. At the trial a verbal agreement to sell Bix bales of wool like various samples was proved. The plaintiff delivered the wool at Wilton Station and defendant removed it, unpacked it, found two bales unequal to sample, and on the same day wrote tlie plaintiff this and asked : " What is to be done in the matter 1 " August 1 the plaintiff replied denying the inferiority. The defendant then sent the wool to the railway station and telegraphed his refusal to take it. The jury found that two bales were not equal to sample, and Hawkins, J., gave judgment for the plaintiff. An appeal by the plaintiff was dismissed. Bramwell, L. .7., distinguished Kibble v. Gough on the ground that in that case the jury might find sufficient evidence of acceptance under the statute, though there might not be sufficient to prevent objections to the goods as not equal to sample. 2 Bo WEN and Baggallay, L. JJ., delivered a concurring opinion. Abbott V. Wolsey, [1895] 2 Q. B. 97; Sale of Goods Act, § 4 (3), ace. Dierson v. Peters- meyer, 109 la. 2-33; Remick v. Snndford, 120 Mass. .309; Mechanical Boiler Co. v. Kellner, 62 N. .J. L. 544; Stone v. Browning, 51 N. Y. 211, 68 N. Y. 598; Scott v. Melady, 27 Out. App. 193, contra. Con/. Standard Paper Co. v. Towns, 72 N. H. 324. SECT, v.] TAYLOR V. SMITH. 881 Smith, Manchester. Bought from Messrs. Charles Taylor, vSons, & Co., 1060 spruce deals. Free to flat, £100 lis. Ad., per Kenworthy's flat, Arthur." Kenworth}' was a carrier who carried goods to Man- chester, and part of the arrangement was that the deals should be sent b}' Kenworthy's flat. The first question is whether there was a memo- randum in writing signed by the defendant of the terms of the con- tract. No letter was written by him which contained any direct reference to the invoice. He signed the following memorandum on the advice note sent him by the carrier: "Refused. Not according to representation. John Smith." The only other document signed by the defendant was a letter dated November 8, written by him to the plaintiffs, which was as follows: "With reference to the deals re- fused by me now lying at Kenworthy's, they are not according to repre- sentation, and much inferior in quality to anj' St. Johns spruce deals I have seen. I consider them fully 10s. per standard below average value, and therefore cannot accept same." The question is whether either or both of these documents can be said to be, in conjunction with any document incorporated with or referred to in them, or either of them, a memorandum within the statute. It is obvious that the advice note, the indorsed memorandum, and the letter do not by themselves constitute such a memorandum, for the terms of the bargain are not to be found in them. If anj' of them had referred to or incorporated the invoice I think there would have been a suflScient memorandum ; but it is impossible to say that the invoice is incorporated with or referred to in any of them. There is therefore no memorandum to satisfy the statute. The second point is this — it was strongly insisted upon by the plain- tiffs — that there was an acceptance of the goods and an actual receipt of them by the purchaser. About the receipt there is no difficult}'. The goods were sent to the defendant on the flat of Kenworthy, the carrier chosen by him, were landed at Kenworthy's wharf, and notice of their arrival was sent to the defendant by Kenworthy, informing him that they were then at his order. But the statute requires that the goods, or some part thereof, shall have been accepted as well as received. Acceptance therefore means something be3-ond receipt; receipt alone is not enough. That receipt b\' a carrier designated by the purchaser is not enough to constitute an acceptance has been settled by numerous authorities which have not been overruled, though some of the dicta in them may be inconsistent with later decisions. What have we here beyond the receipt? The defendant examined the goods on October 28 and 29. There is a controversy' as to whether he did not examine them again on November 5. He denies that he did, and it would not be safe to act on the view that he did make this later examination. On the 29th of October, as he sa^'s, he wrote the memo- randum of refusal on the advice note, and there is no evidence on which we could safely act that he wrote it at anv later date. Then on November 8 he writes the letter I have read. Can he under these cir- 882 TAYLOR V. SMITH. [CHAP. VI. cumstanccs be said to have accepted as well as received tlie goods? It has been decided tliat there maj' be an acceptance of goods within tlie meaning of the statute, though the right to reject the goods as not being according to sample has not been lost ; but unfortunately the cases give no clear explanation of what is an acceptance within the meaning of the statute. The statute has not said that there must be some act recognizing the contract ; it requires recognition in a particular way, by acceptance of the goods or some portion of them. " Acceptance " is not used in the statute according to its common acceptation, and in what precise sense it is used has never been determined. The plain- tiffs in support of the view that there has been an acceptance rely on Morton v. Tibbett, 15 Q. B. 428, and the two recent cases in the Court of Appeal of Kibble v. Gough, 38 L. T. (n. s.) 204, and Page v. Mor- gan, 15 Q. B. D. 228. In the two latter cases the action was tried by a jury, and the question before the Court of Appeal was not whether there had been an acceptance, but whether there was evidence of ac- ceptance to go to the jurj-, and the court held that there was. Page V. Morgan was most relied on, where the law was laid down by Bowen, L. J., in these terms: "Having regard to the mischiefs at which the statute was aimed, it would appear a natural conclusion that the acceptance contemplated by the statute was such a dealing with the goods as amounts to a recognition of the contract." In that case the goods, which consisted of bags of flour, had been taken in part into the defendant's mill, and he there opened some of them for examination. It was held that there was evidence to go to the jury that he had accepted the goods. In the present case the question is not whether there was evidence on whicli a jury might find acceptance, but whether the judge was wrong in finding that there had not been an acceptance. I am not satisfied that there was an acceptance of these goods within any reasonable meaning of the word. I cannot think that the mere inspection of the goods by the defendant amounted to acceptance, even accompanied with such dela}^ as there was in com- municating with the vendors. No doubt you might have a case in which there was such an amount of delay after the goods had been placed in the custody directed by the purchaser as to prevent the purchaser from withdrawing, but here there has been no such lapse of time as can preclude the purchaser from denying that he has accepted the goods. The question then is, Has there been any such dealing with the goods as amounts to acceptance ? I think that no case has gone quite so far as we should be going if we were to saj^ that there was here evi- dence on which a jury might properly find acceptance. In Page v. Morgan the purchaser had some of the sacks taken into his mill ; here the goods were only landed at Kenworthy's wharf, and the defendant gave no directions as to dealing with them. In Page v. Morgan, after some of the sacks had been taken into the defendant's mill, the defend- ant there opened them. In the present case all that appears is that the goods were at the carrier's wharf and the defendant there looked at SECT, v.] VINCENT V. GERMOND. 883 them. I think that this mere looking at them cannot be held to amount to acceptance. If I could find that there was acceptance I should not be indisposed to do so, for one does not like the rights of parties to be defeated on technical grounds ; but I think that great mischief would be done b}' reading a statute in a way in which no reasonable man would read it unless he was determined to get rid of its effect, and by intro- ducing fine distinctions, which cause further litigation by giving rise to other fine distinctions. The appeal must be dismissed. Aiypeal dismissed} VINCENT V. B. & J. GERMOND. Supreme Court of New York, August Term, 1814. [Reported in 11 Jolinson, 283.] This was an action of assumpsit for cattle, (fee, sold and delivered, and was tried at the Dutchess circuit in November, 1813, before Mr. Justice Spencer. It was proved at the trial that in June, 1812, B. Germond, one of the defendants, came to the plaintiff and asked him if he had any cattle to sell, and the plaintiff replying in the affirmative they went together into the field to look at them. B. Germond offered $280 for the cattle, four in number, which after some hesitation the plaintiff agreed to accept, if they were at B. G.'s risk, observing that he had had one or two cattle injured by the clover in the field where the cattle were feeding. B. 1 LiNDLET aud Kay, L. JJ., delivered concurring opinions. The former in the course of his opinion said: "As regards acceptance — apart from Morton v. Tibhett, 15 Q. B. 428, as to which I only say that I recognize its authority— I should have thought it j)lain that there was no acceptance at all. If a man merely looks at goods, and then says he rejects them, how can it be said that he has accepted them 1 Morton V. Tibbett was a peculiar case, for the purchaser resold the goods before he saw them ; that was a di.stinct dealing with the goods, and was held to i)e such an acceptance as to satisfy the statute, though not such an acceptance as to preclude him from rejecting them if, when he examined them, he found that they were not according to sample. Hence was developed the doctrine that there may be an acceptance within the statute, and yet not such an acceptance as to prevent the purchaser from repudiating the goods on the ground that they are not according to the contract. It appears from Page V. Morgan, 15 Q. H. D. 228, that the test is whether there has been such a deal- ing with the goods as amounts to a recognition of tlio contract. The jury there found that there had been acceptance, and the Court of Appeal refused to disturb the ver- dict. The Master of the Kolls said ; ' I rely, for the ])uri)Oses of my judgment in the present case, on the fact th.at the defendant examined the goods to see if they agreed with the sample. I do not see how it is possible to come to any other conclusion with regard to that fact than that it was a dealing with the goods involving an admission that there was a contract.' Whether I should have gone so far I need not say ; but we know how difficult it is to upset the verdict of a jury when there is any evidence to support it. In the present case, if I had been the jury, I should have found that the defendant had not accepted the goods. lie merely went and lo(dut Kuebler said, "No, I can't waste my time. I know you well enough. I'll take the risk of your doing it all right. You go ahead and put up the skins." This evidence was objected to by the defend- ants, and excluded by the judge, on the ground that there was nothing to show that Kuebler had authority to bind the defendants by anything he did sa}'. The judge, at the request of the defendants, ruled that there was no .such evidence of acceptance and delivery of the skins as would entitle the plaintiffs to recover in this action, and ordered a verdict for the defend- ants ; and the case comes before us on the plaintiffs' exceptions. It is evident that the learned judge used the word " delivery " to de- note what is necessary to pass the title as between seller and buyer ; and that the effect of his ruling was that the plaintiffs had failed to prove either of two facts, both of which must be proved in order to maintain the action : 1st. The passing of the title between the parties, at common law. 2d. An acceptance and receipt, within the meaning of the Statute of Frauds. Gen. Sts. c. 105, § o. It is unnecessary to decide whether, under the peculiar circumstances of this case, the jury would have been warranted in finding that the title in the goods passed to the defendants wlien they had been assorted and set apart by the plaintiffs in the absence of the defendants and their agent. In order to constitute an acceptance and receipt under the Statute of Frauds, it is not enough that the title in the goods has vested in the buj-er ; but he must have assumed the legal possession of them, either by taking them into the custody or control of himself or of his authorized agent, or by making the seller or a third person his bailee to hold them for him, so as to terminate the seller s possession of the goods and lien for their price. Allowing the utmost effect to the testimony introduced and offered by the plaintiffs, yet, so long as the goods had not been delivered to the defendants or their agent, but remained in the plaintiffs' warehouse, the plaintiffs, even if they could be held to have SECT. VI.] WALKER V. NUSSEY. 919 parted with the title, had not parted with their possession as sellers, or with the lien incident to such possession ; and therefore there has been no such acceptance and receipt as to satisfy the Statute of Frauds. Safford v. McDonough, 120 Mass. 290; Atherton v. Newhall, 123 Mass. 141. If Kuebler had authority to receive the goods in behalf of tlie defendants, there is no evidence that he exercised that authorit}'. Exce2ytio7is overruled. S. B. Ives, Jr., and G. L. Huntress, for the plaintiffs. E. D. Sohier {F. C. Welch with him), for the defendants. SECTION VI. " Give Something in Earnest to bind the Bargain or in Part OF Payment."^ WALKER V. NUSSEY. In the Exchequer, January 18, 1847. [Reported in 16 Meeson ^- WeJshy, 302.] Debt for goods sold and delivered, and on an account stated. Plea, — 1st, never indebted ; 2d, a set-off for goods sold and delivered, and on an account stated. Issue thereon. At the trial before the under- sheriff of Yorkshire it appeared that, the defendant having sold goods to the plaintiff to the amount of £4 14s. llrf., the defendant on a sub- sequent occasion bought of him a lot of leather, of two sorts, b}' sample. It was then verball3' agreed between them that the £4 14s. Wcl. due to the defendant should go in part payment b}- him to the plaintiff for 1 " In any view we can take of the. matter we perceive no sufficient reason for sup- posing ttiat tlie payment, in the contemplation of the framers of this statute, was restricted to a payment made at the preci.se period of mailing the verbal agreement. It is douljtlci.s true that, until such payment of part of tlie purchase-money, the con- tract would be of no validity, and it would be entirely competent for either party to repudiate it. Neither i)arty would be bound by its terms ; the vendee would be under no obligation to make a i)ayment, and the vendor under no obligation to receive one. But when actually made and accepted with the full concurrence of both parties, then the contract taices effect; then a part payment of the purcliase-money has been made; and then the parties have made a valid contract. This would seem to be a very rea- sonable con.strnctiua of the statute if it was necessary to decide the al)Stract question of the effect of payment of a part of the purcha.se-iiioiiey after the time of entering into a verbal contract." Per Dewey, J., Thompson v. Alger, 12 Met. 428, 436. See to the same point, Davis v. Moore, 13 Me. 424; Dallavo v. Richardson, 96 N. W. Rep. 20 (Mich.); Gaidt v. Brown, 48 N. II. 189. Where, however, as in New York, the statute expressly reqiures payment at the time of the contract, it is necessary' that there should be at least a " restatement or recognition of the essential terms of the contract " when \>&y- ment is made. See Bissell v. Balcom, 39 N. Y. 27.5; Hawhjy v. Keeier, 53 N. Y. 114; Hunter v. Wetsell, 84 N. Y. 549; Crosby Co. v. Trester, 90 Wis. 412. 920 WALKER V. NUSSEY. [CHAP. VI. the leather. Next day the plaintiff sent in the goods to the defendant with this invoice : — Halifax, Oct. 14, 1846. Mr. "William Nussey Bought of Thomas Walker Dressed hide bellies, 287 at 9c7 £10 15s. 3c?. Insole, 370 at 6^ 10 3 8 £20 18s. lie?. By yoxxx account against me 4 14 11 The defendant returned the goods within two days as inferior to sample, and wrote to the plaintiff to pay him the £4 14s. lie?. The plaintiff refused to receive the goods and brought this action. The under-sheriff ruled that there was nothing to show that the £4 14s. lid. had been given by the defendant in earnest or part of payment, directing the jury to find for him if they thought he re- turned the goods ill a reasonable time without taking to them. The jury found a verdict for the defendant on both issues. Pollock, C. B. I think no rule ought to be granted. The plaintiff sues for goods sold and delivered by him to the defendant above £10 in value ; and it was admitted that the defendant had previously sold him goods for £4 14s. l\d. On the new dealing between them the agreement was, that that sum should be taken as part payment by the defendant, and that he should only pay the plaintiff the difference between that sum and the amount of the goods bought from him. This contract was verbal; but it is argued that the £4 14s. \\d. was a part payment by the defendant so as to take the case out of the Statute of Frauds. But I think it was not. Here there was nothing but one contract ; whereas the statute requires a contract and, if it be not in writing, something besides. The question here is, whether what took place amounted to a giving of earnest or in part of payment at the time of the bargain, the goods bought by the defendant not having been then delivered to him by the plaintiff. Nothing turns on the effect of their subsequent delivery. Had these parties positively agreed to extinguish the debt of £4 odd, and receive the plaintiff's goods pro tanto instead of it, the law might have been satisfied without the cere- mony of paying it to the defendant and repaying it by him.^ But the actual contract did not amount to that, and there has been no part pay- ment within the statute. Parke, B. I am of the same opinion, and think the ruling at the trial was right. The facts seem to be these : The plaintiff owed the defendant a sum of £4 14s. lid. The parties then verbally agreed that 1 But see Norton v. Davison, [1899] 1 Q. B. 401; Galbraith v. Holmes, 15 Ind. App. 34; Gorman «. Brossard, 120 Mich. 611; Matthiessen &c. Co. v. McMahon, 38 N. J. L. 536; Artcher v. Zeh, 5 Hill, 200; Walrath i\ Richie, 5 Lans. 362; Brabin v. Hyde, 32 N. Y. 519. Actual surrender of a note is sufficient, Sharp v. Carroll, 66 Wis. 62; or indorsement upon a note, Dieckman v. Young, 87 Mo. App. 530; or entering a credit on books of account, Norwegian Plow Co. v. Hanthorn, 71 Wis. 529. SECT. VI.] ARTCHEE V. ZEH. 921 the plaintiff should sell to the defendant goods above £10 in value, according to a given sample, the plaintiff's debt to go in part payment, and the residue to be paid by the defendant. No evidence was given of the actual payment or discharge of the debt due from the plaintiff, so that all rested in the agreement merely. If Mr. Addison could have shown the contract to have been that the parties were to be put in the same situation at that time as if the plaintiff's debt to the defendant had then been paid, or as if it had been paid to the defendant and repaid by him to the plaintiff as earnest, the statute might have been satisfied without anj' mone}' having passed in fact ; but the agreement was in fact that the goods should be delivered by the plaintiff by way of satisfaction of the debt previousl}' due from him to the defendant, and that the defendant should pay for the rest. Then the buyer did not " give something in earnest to bind the bargain or in part of pay- ment." The " part payment" mentioned in the statute must take place either at or subsequent to the time when the bargain was made. Had there been a bargain to sell the leather at a certain price, and subse- quently an agreement that the sum due from the plaintiff was to be wiped off from the amount of that price, or that the goods delivered should be taken in satisfaction of the debt due from the plaintiff, either might have been an equivalent to part payment, as an agreement to set off one item against another is equivalent to payment of mone}'. But as the stipulation respecting the plaintiff's debt was merely a portion of the contemporaneous contract, it was not a giving something to the plaintiff by way of earnest or in part of payment, then or subsequently. liule refused.^ ARTCHER V. ZEH. Supreme Court of New York, May Term, 1843 [Reported in 5 /////, 200.] Error to the Mayor's Court of the cit}' of Alban}', where Zeh sued Artcher in assumpsit for money had and received. The facts upon which the plaintiff relied were proved by Angus McDuffe, and were substantially as follows : Artcher agreed to sell certain land to McDuffe, but in consequence of the lattcr's inability to pay the purchase-money it was agreed between them that, if McDuffe would find another pur- chaser, Artcher would convey to him and account to McDuffe for whatever the land brought over 81,403.19. In pursuance of this arrangement Artcher conveyed to Wright and "Wells on the 30th of October, 1839, for the sum of $1,640.87, taking their mortgage for the amount pa3'able in two equal instalments on the 1st of June and 1st of December, 1840. Zeh held a note against McDuffe for more than the * Alderson and Platt, BB., delivered brief concurring opinions. 922 ARTCHEK V. ZEH. [CHAP. VI. difference between $1,403.19 and the sum for which the land sold, and the latter agreed to transfer his interest in such difference to Zeh, who remarked that if Artchcr would assent to the transfer he (Zeh) would credit or indorse the amount on the note. McDuffe accordingly called on Artcher and obtained from him a promise to pa}^ over the sum claimed by the former when the mortgage should be paid. This was immediately after the mortgage was given. The mortgage was paid to Artcher about the time it fell due ; but he refused to fulfil his engage- ment by paying any part of the money to Zeh, who thereupon com- menced this action in the court below. At the close of McDuffe's examination he was objected to by the defendant's counsel as an incom- petent witness for the plaintiff, and a motion was thereupon made to have his testimony stricken out of the case. The motion was denied, and the defendant's counsel excepted. It was not shown that any of the transactions or agreements testified to by McDuflTe, except the deed and mortgage, were reduced to writing ; nor did it appear that Zeh had actually credited McDuffe with the claim against Artcher, indorsed it on the note, or given a receipt for it in satisfaction or in any other form. The defendant's counsel moved for a non-suit on the ground, 1. That inasmuch as the assignment from McDuffe to Zeh was not in writing, nor the note extinguished thereby, the assignment was void by the Statute of Frauds ; 2. That Artcher was shown to be a trustee of McDuffe's interest in the mortgage moneys, that such trust was void under the Revised Statutes, and that the agreement between Artcher, McDuffe, and Zeh was therefore also void; and 3. That Artcher's promise to pay the money to Zeh was not to be performed within a year, and was for that reason void by the Statute of Frauds. The court below denied the motion, and the defendant's counsel excepted. Ver- dict and judgment for the plaintiff. The defendant sued out a writ of error. It. W. Peckham^ for the plaintiff in error. H. G. Wheaton, for the defendant in error. By the Court, Cowen, J. . . . The first objection taken on the mo- tion for a non-suit should have been allowed. By the 2 Rev. Sts. 70 (2d ed.), § 3, in order to pass the interest in a chose in action where the price exceeds S50 there must be a writing, or the evidences of the debt or some of them must be delivered, or some part of the purchase-money be paid ; otherwise the transfer is void. It is sup- posed that here was something equivalent to part payment of the money, because the terms of the agreement were such as to extinguish pro tanto the debt due from McDuffe to Zeh ; in other words, that the transfer was accepted as a payment, and per se worked a satisfaction. McDuffe agreed with Zeh that Artcher should pay him, and Zeh stipu- lated that if Artcher would agree to pay him he would give McDuffe credit for the sum, or would indorse it on the note. But it never was credited, indorsed, or receipted in any form ; at least nothing of the SECT. VI.] ARTCHER V. ZEE. 923 kind was shown. It need not be denied tliat a promise to indorse or credit Artcher's agreement to pay, in satisfaction or payment of so much as the sum amounted to, would operate as an extinguishment ; or in other words, that an agreement to give an absolute credit would have that effect. But the agreement leaves it equal whether the in- dorsement or credit was not to be the usual conditional one, to become absolute on the assigned claim proving available. Such is the legal construction of an arrangement to take a claim against a third person, to be applied upon a precedent debt ; and the law will not hold it to be an absolute payment unless there be an express agreement to take it as per se a satisfaction. In the absence of such an agi'eement the law will not compel the creditor to apply it in discharge till the money be actually received. Here are no such words as "•absolute payment," " absolute satisfaction," "absolute discharge," or the like, to indicate that the credit was to differ from the one usual in such cases. Even the transfer of a negotiable note against a third person would not have been a satisfaction on the terms here used. But we are not left to implication. If this plaintiff really intended to work an extinguishment of his claim against McDuffe, whj- did he not indorse Artcher's promise as so much money paid on the note, or credit or give a receipt for it as such? Down to the very time of the trial he had done neither. He left his note to speak the same language as it did before the arrange- ment was made ; at least we are to intend that he did, for his counsel do not pretend that he had applied the demand said to have been trans- ferred, in any form, absolute or conditional. In refusing to api>ly it absolutely 1 admit he acted according to the legal inference of what was intended ; but the omission strengthens that inference. It took away all doubt of what the parties intended, and left no question for the jury. Suppose this action had been against McDuffe, and it had appeared tliat the money had never been paid b}- the mortgagors and was never like to be, or that Zeh had failed to collect of Artcher for any cause not imputable to Zeh : clearly the mere arrangement between him and McDuffe could not be allowed as a bar. Since the revised Statute of Frauds putting equitable transfers of choses in action on a footing similar to that on which sales of goods stand, if there be no writing ami no delivery the assignee must pay something, at least part with something of value. The statute requires that he should pay some part of the purchase-money. No doubt it must be taken in its spirit to mean anythiug or part of anything, given by way of consideration, which is money or money's worth. But the object was to have something pass between the parties beside mere words, some symbol like earnest money. 2 Black. Com. 448. Here everything lies in parol ; and even if there had been the express agree- ment which is set up, — an agreement for absolute credit, — I should doubt whether the statute would be satisfied without something more ; at least some absolute indorsement or written credit at the time. One object of the statute was to prevent perjury. The method taken was 924 EDGEETON V. HODGE. [CHAP. VI. to have something done, not to rest everything xipon mere oral agree- ment. Here even the agreement is not direct, but rather sought to be raised b}' way of construction on an equivocal conversation. Taken in any view, therefore, I thinlc the assignment was void within the intent, as it is clearly within the words of the Statute of Frauds. The judgment must be reversed ; a venire de ?iovo to go from the court below ; the costs to abide the event. Ordered accordingly. SHELDON EDGERTON v. J. H. C. HODGE. Supreme Court of Vermont, January Term, 1869. [Reported in 41 Vermont Reports, 676.] Assumpsit, which was referred to a referee, who reported : — " That on the 30th of June, 1864, the parties made an agreement by parol by which the defendant agreed to sell to the plaintiff what new- milk cheese he then had on hand and unsold, amounting to 975 pounds, and the new-milk cheese he should make thereafter during the season ; and the plaintiff agreed to pay the defendant therefor at the rate of \b^ cents per pound, and every twenty da3-s thereafter agreed to call at the defendant's house in Dorset, select such cheese as would be fit for market, attend its weiglit there, and pay the defendant for the cheese so selected and weighed, and then the defendant was to deliver the same to the plaintiff at the railroad depot in Manchester. The day after the above agreement was made the defendant b}' his son Albert Hodge wrote and sent by mail a letter to the plaintiff (a copy of which is annexed, dated July 1, 1864), depositing the same at the post-office in East Rupert, directed to the plaintiff at Pawlet and received by liim by mail on the same daj'. The next day, after the return mail from Pawlet to East Rupert had gone out, it being on Saturday, the plaintiff enclosed in a letter directed to the defendant at East Rupert, and left it in the post-office at Pawlet to be carried by mail to the defendant, the sum of 850. (A copy of the plaintiff's letter is hereunto annexed, and tlie envelope enclosing the §50 is postmarked " Pawlet, July 4.") This letter of the plaintiff was, on the 8th of July, 1864, handed to the said Albert Hodge by the postmaster of East Rupert, and it was on the same day carried by him to the defendant, opened by the said Albert, the 850 refused to be received by tlie defendant, and the letter of the plaintiff, with the 850 and the envelope enclosing them, were by mail returned to the plaintiff with no communication accompanying them from the defendant. The plaintiff received the so enclosed wrap- per, money and letter, on the 9th of July, 1864, and kept the same 850 for six months thereafter. A daily mail is carried between the post- oflices of Pawlet and East Rupert, a distance of six miles. On tie SECT. VI.] EDGERTON V. HODGE. 925 20th of July, 1864, 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 tlie 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 of July, 1864. " 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 1864, deduct- ing freight and commission, 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 $306.32. Dorset, July 1, 1864. Mr. Edgerton. Sir, — According to our talk yesterday you bought my cheese for the season. I shall stand to it, but shall want you to pay me $50 to bind it. I s'pose 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 cheese is delivered. Yours in haste, J. H. C. Hodge, Per A. H. Pawlet, July 2, 1864. Mb. Hodge. Dear Sir, — I enclose you $50 to apply on your dairy of cheese as you proposed. Y''ours trul}', S. Edgerton. The court at the March term, 1868, Pierpoint, C. J., presiding, ren- dered jiidgnient 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. Edgerton S Nicholson and J. B. Brotnley^ for the defendant. Fayette Potter, for the plaintiff. The opinion of the court was delivered by Wilson, J. The parol agreement entered into by the parties June 80th, being for th(? sale of goods, wares, and merchandise, for the price of $40 and more, is within the Statute of Frauds, and inoperative unless taken out of the statute by the subsequent acts of the parties. It is claimed by the plaintiff that the defendant's letter under date of July 1st, and the depositing of the i)laintiff's letter with the $50 in the post- oflBce on the 2d of that month, constitute a payment of part of the purchase-mone}' witliin the meaning 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 1st says: "According 926 EDGEKTON V, HODGE. [CIIAP, VI. to our talk yesterday, you bought my cheese for the season. I shall stand to it, but shall want $50 to bind it." Hy that letter the plaintiff was notified that he could make the bargain binding upon himself as well as the defendant by paying to the defendant the sum demanded for that purpose. The plaintiff on the 2d of Jul}' enclosed $50 in a letter directed to the defendant, and deposited it in the post-office, which letter was delivered to the defendant on the 8th of that month. He did not accept the money, but returned it to the plaintiff". It is clear that the act of depositing the letter and the money in the post- office was not a payment to the defendant. His letter did not direct the money to be sent by mail : it contains nothing that would indicate that the defendant expected the plaintiff would reply by letter, or accept the proposition b}- depositing the money in the post-office : and the fact that the defendant b}' letter offered to allow the plaintiff to perfect the agreement b}' paying part of the purchase-money did not authorize or invite the plaintiff to send the money b}' mail or make the mail the defendant's carrier of the money. The language of the defend- ant's letter is, " I shall want you to pa}' me ^50 to bind it; " that is, to make it a valid contract. The money when deposited in the post-office belonged to the plain- tiff; it belonged to the plaintiff while being carried by mail to the defendant, and it would continue the property of the plaintiff unless accepted by the defendant. The plaintiff took the risk not on!}- of the safe conveyance of the money to tlie defendant, but also as to the will- ingness of the defendant to accept it. The defendant's letter, not constituting such a note or memorandum of the agreement as the statute required, left it optional with the defendant to accept or refuse part payment when offered to him, the same as if the defendant had sent to the plaintiff a verbal communication of the same import as the defend- ant's letter. A point is made by counsel as to whether the money was conveyed and delivered or offered to the defendant within a reasonable time after his letter was received by the plaintiff, but it seems to us 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 $50, 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 tlie case out of the operation of the .statute it required the agreement or consent of both parties as to pay- ment by the plaintiff and acceptance of it by the defendant. Upon the facts of this case we think the rights of the parties rest upon and are to be determined by the verbal agreement entered into by them on the 30th of June, and that their subsequent attempts to make that agree- ment a valid contract cannot aid the plaintiff. The statute provides that " no contract for the sale of any goods, wares, or merchandise, for the price of $40 or more, shall be valid unless the purchaser shall accept and receive part of the goods so sold, or shall give something in earnest SECT. VI.] EDGERTON V. HODGE. 927 to bind the bargain or in part payment, or unless some note or memo- randum of the bargain be made in writing and signed b}' the party to be charged thereby, or by some person thereunto by him lawfully authorized." The very language of the statute above quoted implies that, in which- ever way the parties verbally agree or propose that a 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 b}' the pur- chaser accepting and receiving part of the goods so sold, b}' 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, b}- the consent of both parties. It is obvious that it would require the consent of the purchaser to accept and receive part of 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 part}' to be charged thereby. A valid contract is an agreement or covenant between two or more persons, in which each part}' binds himself to do or forbear some act ; and each acquires a right to what the other promises ; but if the parties in making a con- tract like the present one omft to do what the statute requires to be done to make a valid contract, it would require the consent of both parties to supply the thing omitted. Suppose it had been one stipula- tion of the verbal agreement on the 30th of June that the plaintiff should give and the defendant receive something in earnest to bind the bargain, and in pursuance of such stipulation the plaintiff had then offered to give or pay the amount so stipulated, and the defendant liad refused to receive it, saying that he preferred not to receive any money until he had delivered the whole or part of the property, or had refused to accept the money so offered, or do any other act to bind the bar- gain, without giving any reason for such refusal, it would be evident that lie did not intend to make a binding contract. But the fact that he had made such verbal agreement to receive something or to do some other act to bind the bargain, and that the plaintiff was ready and offered to comply on his part, would not take the agreement out of the statute. A verbal stipulation to give and to receive something in earnest to bind the bargain or in part payment, or a verbal promise to make a note or memorandum in writing necessary to exempt the agree- ment from the operation of the statute, is as much within the Statute of Frauds as is the agreement of contract taken as a whole ; and a note or memorandum in relation to giving sometliing in earnest to bind the bargain or in part payment, wiiich is insullicient of itself to take the contract out of the statute, is also insufficient to make the contract binding upon either ijarty. The judgment of the county court is reversed, and judgment for the defendant for his costs. 928 SIMON V. METIVIER. [CHAP. VI. SECTION VII. " Or that some Note or Memorandum in Writing of the said Bar- gain BE MADE AND SIGNED BY THE PARTIES TO BE CHARGED BY SUCH Contract, or their Agents thereunto lawfully authorized." SIMON V. METIVIER or MOTIVOS. In the King's Bench, Trinity Term, 1766. [Reported in 1 William Blackstone, 599.] Case for uot taking away certain drugs to the value of £110, which were bought by the defendant at an auction ; and having since sunk in their vahie he refused to take them, and they were re-sold at an under price ; and this action was brought to recover the difference. It appeared on evidence that, by the terms of the sale, if 6d. was not ten- dered by the buyer the goods might be put up again and re-sold ; that no 6d. was paid ; but that the auctioneer took down the price and buyer's name in writing ; and that after the day of bidding and before the day of payment the goods were weighed off to a servant of the defendant. The jury found a verdict for the plaintiff. Stoive and Davenport moved for a new trial. Norton and Wallace showed cause. Lord Mansfield, C. J. The question is singly upon the Statute of Frauds : whether the contract is void by the provisions of that positive law. The object of the Legislature in that statute was a wise one ; and what the Legislature meant is the rule both at law and equity ; for in this case they are both the same. The key to the construction of the act is the intent of the Legislature ; and therefore many cases, though seemingly within the letter, have been let out of it. More instances have indeed occurred in courts of equity than of law, but the rule is in both the same. For instance, where a man admits the con- tract to have been made it is out of the statute ; for here there can be no perjury. Again, no advantage shall be taken of this statute to pro- tect the fraud of another. Therefore if the contract is executed, it is never set aside. And there are many other general rules by way of exception to the statute. There are two lights in which the present case may be considered. 1st, Whether sales by auction are within the statute. They certainly existed in England, and in all other countries, at the date of this stat- ute. The auctioneer is a third person who is to many intents the agent of both parties. The solemnity of that kind of sale precludes all per- jury as to the fact itself of sale. The contract is executed when the hammer is knocked down. I remember a case where some sugars were bought at an auction, and afterwards consumed by fire in the auction warehouse ; and the loss fell upon the buyer. The circumstance of SECT. VII.] SIMON V. METIVIER. 929 R^eighing ofif is similar to this, and very material in the present ease. And according to the inclination of my present opinion auctions in general are not within the statute. But this is not necessary to be now determined ; for if they are withui it, 2d, The requisites of the statute are well complied with. Every bidding is an accession to the conditions of sale. The name is put down by the buyer's authority.^ No latitude is left to fraud and per- jury from the loose memory of witnesses. WiLMOT, J. It may be a great question whether sales by auction are within the statute. They were certainly not meant by the aet, ■which was to extend only to the mischiefs created by private and clan- destine sales. Had the Statute of Frauds been always carried into execution according to the letter, it would have done ten times more mischief than it has done good, by protecting rather than ^by pre- venting frauds. I therefore incline to think sales by auction openly transacted before five hundred people are not within the statute. But the present agreement is strictly withir the restrictions of the act. As to the objection for want of mutuality ; that power of re-sell- ing was optional in the seller, if he pleased to require the earnest, and it was denied. And the meaning clearly was, that upon refusal goods m.ay be instantly put up again. Not being asked, the contract clearly bound the seller without it; and therefore shall bind the buyer. The weighing it afterwards is a very corroborating circumstance. I remem- ber the case of the sale of some balsam, which was weighed and put into a pot of the seller instead of a pitcher which the buyer had brought and left at the seller's shop. This was held a sufficient deliv- ery to bind the contract. Yates, J. I much doubt whether the contract was within the Stat- ute of Frauds. If it was, I am clear tliat the requisites of the statute were duly observed. Where Sir Thomas Osborne bespoke a chariot, that being in its nature not deliverable immediately, it was held not 1 Emiiierson v. Heelis, 2 Taunt. 38; White v. Proctor, 4 Taunt. 209; Bird v. Boulter, 4 B. & Ad. 443; Mews v. Carr, 1 H. & N. 484; White v. Farley, 81 Ala. 5G3; Craig v. God- fro.v, 1 Cal. 415; Ansley v. Green, 82 Ga. 181; Doty v. Wilder, 15 111. 407; Jones v. Ko- komo Assoc., 77 Ind. 340; Thomas v. Kear, 3 Bush, 619; Garth v. Davis, 85 S. W. Kep. 692 (Ky.); O'Donnell v. Leeman, 43 Me. 158, 100; Ijams v. Hoffman, 1 Md. 423; Bent v. Cobb, 9 Gray, 397; Springer v. Kleinsorge, 83 Mo. 152; Johnson v. Buck, 35 N. J. L. 338; McConib V. Wright, 4 Joims. Ch. 059; I'ugh v. Chesseldine, 11 Ohio, 109; Meadows v. Meadows, 3 McCord, 458; Harvey v. Stevens, 43 Vt. 053; Walker r. Herring, 21 Gratt. 678; Atkinson v. Washington & Jefferson College, 54 W. Va. 32, 39, ace. But see Dun- bam V. Ilartman, 153 Mo. 625; Adams v. Scales, 1 Baxt. 337. If the auctioneer is himself interested as a seller, he cannot by his signature bind the buj-er. Bent v. Cobb, 9 Gray, 397; Tull v. David, 45 Mo. 444; Johnson v. Buck, 35 N. J. L. 338. The signature bv the auctioneer must be made immediatel}' after the sale, or it will not be binding. Smith v. Arnold, 5 Mason, 414, 419; Craig v. Godfroy, 1 Cal. 415; llorlon v. McCarty, 53 Me. 394, 308; Gill v. Buckncll, 2 Cush. 355, 3.58; Qu"inzcl r. Sclunidt, 50 N. J. Ef[. 792; Hicks v. Wliitmore, 12 Wend. 548. And between the fall of the hammer and the writing of the memorandum, the bidder has a locus jianilenthie and may withdraw his bid. Pike v. Balch, 38 Me. 302. 311; Dunham v. Hartman, 153 Mo. 625; Gwathney v Cason, 74 N. C. 5. 930 SAUNDERSON V. JACKSON. [CHAP. VI. within the statute ; because not capable of all the requisites of the statute. 1 look upon this contract as executory in its nature, and being to be executed within a year, is so far not within the statute. Aston, J. 1 think the terms of the sale and the requisites of the statute were fully complied witli by giving in his name as a purchaser ; which is better than the sixpence earnest. Hule nisi for a new trial discharged. SAUNDERSON v. JACKSON and Another. In the Common Pleas, June 28, 1800. [Reported in 2 Bosanquet Sp Puller, 238.] This was an action on the case against the defendants for not deliv- ering 1000 gallons of gin to the plaintiff within a certain time accord- ing to a bargain entered into between them. There was a second count for not delivering within a reasonable time. The cause was tried before Lord Eldon, C. J., at the Guildhall sit- tings after last Easter term, when the contract for the delivery of the gin having been proved on the part of the plaintiff, the defendants insisted that the case was within the Statute of Frauds, inasmuch as there was no note or memorandum in writing of the bargain. The circum- stances were as follows : At the time the order for the gin was given by the plaintiff to the defendants a bill of parcels was delivered to the former, the printed part of which was " London. Bought of Jackson and Hankin, distillers, No. 8 Oxford Street," and then followed in writing, " 1000 gallons of gin, 1 in 5 gin, 7s. £350." About a month after tlie above period the defendants also wrote the following letter to the plaintiff: " Sir, we wish to know what time we shall send you a part of your order, and shall be obliged for a little time in delivery of the remainder ; must request you to return our pipes. We are your humble servants, Jackson and Hankin." On this evidence his Lordship directed tlie jury to find a verdict for the plaintiff, reserving the point made for the consideration of the court. Lens^ Serjt., in support of his rule. Shepherd, Serjt., contra. Lord Eldon, C J. This bill of parcels, though not the contract itself, may amount to a note or memorandum of the contract within the meaning of the statute. The single question therefore is. Whether if a man be in the habit of printing instead of writing his name he may not be said to sign by his printed name as well as his written name? At all events, connecting this bill of parcels with the subsequent letter of the defendants, I think the case is clearly taken out of the Statute SECT. VII. J SCHNEIDER V. NOERIS. 931 of Frauds. For ivltbougli it be admitted that the letter which does not state the terms of the agreement would not alone have been sufficient, yet as the jury have connected it with something which does, and the letter is signed by the defendants, there is then a written note or memorandum of the order which was originally given by the plaintiff signed b^^ the defendants. It has been decided that, if a man draw up an agreement in his own handwriting, beginning, ''I A. B. agree," &c., and leave a place for a signature at the bottom, but never sign it, it may be considered as a note or memorandum in writing within the statute. And yet it is impossible not to see that the insertion of the name at the beginning was not intended to be a signature, and that the paper was meant to be incomplete until it was further signed. This last case is stronger than the one now before us, and affords an answer to the argument tliat this bill of parcels was not delivered as a note or memorandum of the contract. Per Curiam, Mule discharged. SCHNEIDER and Another v. NORRIS. In the King's Bench, January 25, 1814. {Reported in 2 Maule Spa7ikie, Serjts., contra. Best, C. J. It has been argued that the subsequent adoption of the contract by Dunn will not take this case out of the operation of the Statute of Frauds ; and it has been insisted that the agent should have his authority at the time the contract is entered into. If such had been the intention of the Legislature, it would have been expressed more clearl}- ; but the statute onl}- requires some note or memorandum in writing to be signed b}' the part}' to be charged or his agent there- unto lawfully authorized, leaving us to the rules of common law as to tlie mode in which the agent is to receive his authorit}'. IS'ow in all other cases a subsequent sanction is considered the same thing in clTect as assent at the time. " Oranis ratihabitio retrotraliitur et mandato aequiparatur ; " and in my opinion the subsequent sanction of a con- tract signed b}' an agent takes it out of the operation of the statute more satisfactorily than an authorit}' given beforehand. Where the authority is given beforehand, the party must trust to his agent ; if it be given subsequently to the contract, the party knows that all has been done according to his wishes. But in Kinuitz v. Surry, where the broker, who signed the broker's note upon a sale of corn, was the sel- ler's agent, Lord Ellenborough held that if the buyer acted upon the note, that was such an adoption of his agenc}' as made his note suflicicnt within the Statute of Frauds ; and in Soames if. Spencer, 1 Dow. & R}-. 32, wliorc, A. and B., being jointly interested in a quantity of oil, A. entered into a contract for the sale of it without the authority or knowledge of B., who upon receiving information of the circumstance refused to be bound, but afterwards assented b}* parol, and samples were delivered to the vendees, it was held, in an action against the vendees, tiiat B.'s subsequent ratification of the contract rendered it binding, and that it was to be considered as a contract in writing within the Statute of Frauds. That is an express decision on the point 942 MACLEAN V. DUNN. [CHAP. VI. that under the Statute of Frauds the ratification of the principal relates back to the time when the agent made the contract. Then with regard to the resale, it seems clear to me that it did not rescind the contract. It is admitted that perishable articles ma}' be resold. It is difficult to say what may be esteemed perishable articles and what not; but if articles are not perishable, price is, and may alter in a few days or a few hours. In that respect there is no difference between one commodity and another. It is a practice therefore founded on good sense to make a resale of a disputed article, and to hold the original contractor responsible for the difference. The practice itself affords some evidence of the law, and we ought not to oppose it except on the authority of decided cases. Those which have been cited do not apply. Where a man, in an action for goods sold and delivered, insists on having from the vendee the price at which he contracted to dispose of his goods, he cannot perhaps consistently with such a demand dispose of them to another ; but if he sues for damages in con- sequence of the vendee's refusing to complete Iiis contract, it is not necessary that he should retain dominion over the goods: he merel}' alleges that a contract was entered into for the purchase of certain articles, that it has not been fulfilled, and that he has sustained damage in cons*equence. There is nothing in this which requires that the property should be in his hands when he commences the suit ; and it is required neither by justice nor by the practice of the mercantile world. In actions* on the warranty of a horse it is the constant practice to sell the horse, and to sue to recover the difference. The usage in every branch of trade is equally against the objection which has been raised on the part of the defendants. It is urged indeed that in contracts entered into by the East India Company the power of resale is ex- pressly provided for in case the vendee should refuse to perform his contract. That is only ex abundantl cautela, and it has never been decided that a resale of the goods is a bar to an action for damages for non-performance of a contract to purchase them : the contrary has been held at nisi prius. But without referring to a nisi prius case as authority, we are anxious to confirm a rule consistent with con- venience and law. It is most convenient that when a party refuses to take goods he has purchased, they should be resold, and that he should be liable to the loss, if any upon the resale. The goods may become w^orse the longer they are kept ; and at all events there is the risk of the price becoming lower. R%de discharged} 1 Butman v. Butman, 213 111. 104; Hankins v. Baker, 46 N. Y. 666, ace. Conf. Baldwin f. Schiappacasse, 109 Mich. 170. SECT. VII.] WEIGHT V. D ANN AH. 943 WRIGHT V. DANNAH. At Guildhall, coram Lord Ellenborough, July 4, 1809. [Reported in 2 Campbell, 203.] Goods bargained and sold. Plea, the general issue. The action was brought for the value of four sacks of clover-seed. The parties, having met on the Corn Exchange in London, entered into a negotiation for the sale of this seed ; and after the}' had agreed on the price, the plaintiff wrote the following memorandum of the contract : — Robert Dannah, Windley, near Derby. 4 sacks clover-seed, at £6 18s. Per Fly Boat. After the plaintiff had written this memorandum, the defendant, who overlooked him while he wrote it, desired him to alter the figures 18 to 16, — £6 16s. being the price agreed on. This the plaintiff accord- ingly did. They then parted, the memorandum being left with the defendant. Park objected that this was not a sufficient memorandum within the Statute of Frauds, not being signed by the party to be charged by it or his authorized agent. Garroio and Puller, contra. Lord Ellenborough said the agent must be some third person, and could not be the other contracting party. Plaintiff nonsuited} 1 Farebrother v. Simmons, 5 B. & Aid. 333; Sharman v. Brandt, L. R. 6 Q. B. 720; Bent V. Cobb, 9 Gray, 397; Boardman v. Spooner, 13 Allen, 353; Tull v. David, 45 Mo. 444; Dunham v. Hartman, 153 Mo. G25; Johnson v. Buck, 35 N. J. L. 338; Adams v. Scales, 1 Baxt. 337, ace. Conf. Bird v. Boulter, 4 B. & Ad. 443; Murphy v. Boese, L. R. 10 Ex. 126; Snyder v. Wolford, 33 Minn. 175; Brent v. Green, G Leigh, 16^ 944 BAILEY V. SWEETING. [CHAP. VI. BATLEY AND Another v. SWEETING. In the Common Pleas, January 12 and 17, 1861. [Reported in 30 Law Journal Reports, Common Pleas, 150.] This was an action brought to recover £76 14s. 3d. for goods bar- gained and sold. The defendant paid into court £38 3s. 9d., and pleaded never indebted to the rest of the claim. The cause was tried before Erie, C. J., at the London sittings after Easter term, 1860. The defendant, a furniture dealer at Cheltenham, being at the plaintiffs' manufactorj' in London in Jul}-, 1859, bought of the plaintiffs four old gilt chimney-glasses at £28 10s., and a walnut chimnej-glass at £6 Gs., to be paid for by a check on deliver}- ; and also on the same occasion bought of the plaintiffs various other articles (some of which were not then ready, but had to be made) on certain credit terms. The chimne}-- glasses formed the first parcel of such goods which were sent to the defendant at Cheltenham. The carrier, however, to whom this parcel was delivered so damaged it during its carnage that the defendant refused to receive it when it arrived, and the plaintiffs were at once informed of such refusal. The other goods which had been bought were afterwards sent in different parcels to the defendant, and were duly received b}- him ; and it was admitted at the trial that the value of these was covered by the amount which had been paid into court, and the only question was as to the defendant's liability in respect of the first parcel, the price of which, with the cases in which it was packed, amounted to £38 10s. 6d. With reference to the Statute of Frauds, the plaintiffs contended that the sale of all the articles had been under one contract, and that there had been therefore a part accept- ance ; and they also relied on the following letter from the defendant, written in answer to one from the plaintiffs applying for payment, as a memorandum satisfying the statute : — Cheltenham, December 3, 1859. Gentlemen, — In reply to your letter of the 1st instant, I beg to sa}' that the only parcel of goods selected for read}' money was the chimney-glasses, amounting to £38 lO.s. Qd., which goods I have never received, and have long since declined to have for reasons made known to 3-ou at the time; with regard to the other items, viz., £11 4s. 9c?., £14 13s., and £13 13s., for goods had subsequently (less cases re- turned), those goods are, I believe, subject to the usual discount of £5 per cent, and I am quite ready to remit j-ou cash for these parcels at once, and on receipt of 3-our reply to this letter will instruct a friend to call on you and settle accordingly. I am ^-ours, &c., Geo. Sweeting. The jury, being of opinion that the chimnG3--glasses were sold under a separate contract from that under which the other articles were sold, SECT. VII.] BAILEY V. SWEETING. 945 found a verdict for the defendant ; leave being reserved to the plain- tiffs to move to set the same aside, and to enter a verdict for them for £38 IO5. 6(7. , if the court should be of opinion that the defendant's letter of the 3d of December was sufficient to satisfy the Statute of Frauds. In Trinity term last Hawkins obtained a rule nisi accordingly to set the verdict aside, and to enter it for the plaintiffs for £38 10s. 6c?. pur- suant to the leave reserved, or for a new trial on the ground of the verdict being against evidence. Henry James and T. E. Chitty now showed cause. Hawkins and Hemplay, in support of the rule. Erlk, C. J. This was an action for goods bargained and sold, and the question was whether there had been a sale. The defendant relies on the Statute of Frauds, and says that there was no note or memoran- dum to satisfy the statute. There was a letter, however, written by the defendant, which in effect says this to the planitiffs : " I made a bargain with you for the purchase of chimney-glasses at the sum of £38 10s. 6c?., but I declined to have them because the carrier broke them." Now, the first part of that letter is unquestionabh^ a note or memorandum of the bargain : it contains the price and all the substance of the contract ; and there could be no dispute that, if it had stopped there, it would have been a good memorandum of the contract within the meaning of the statute. I think that what had passed in the first instance orally between the parties on the subject of the purchase was in the nature of an inchoate contract, and which, when construed with the letter afterwards written, is a good and binding contract. Then the latter part of the letter in effect says that " the goods to which the contract I had made relates were refused by me because the carrier broke them ; " and it has been contended b}' the defendant that the letter is not a memorandum of the contract within the statute, because it repudiates the bargain ; and the defendant has relied on the passage cited from Mr. Justice Blackburn's book on Contracts, in support of the proposition that the acknowledgment of the bargain is not within the statute if it is accompanied In- a repudiation of it ; and ref- erence has been made to the case of Rondeau v. Wyatt where there was a bill of discovery, and it was held that the answer thereto \\\ chancery was not a sufficient memorandum within tlie Statute of Frauds. Although I have thus adverted to these authorities, there is in fact no decided authority on the point, and we are, tlicrefore, referred back to the original Statute of Frauds ; and I, for one, am of opinion that the letter of the defendant is a good memorandum of the bargain within the meaning of that statute. Tlie object of the act was to pre- vent fraud and perjury. That is sufficiently obviated by the letter in question, because the clefendant says therein, " I made the contract for the goods." The goods and the price are both referred to, and the defendant does not in such letter rely on the Statute of Frauds as making the contract invalid, but he rests his repudiation on the ground 946 BAILEY I'. SWEETINCx. [CHAP. VI. of the goods naA-ing been broken. That ma}-, I think, distinguish the present case from cases wliere the party admitting the contract has relied en the statute as a defence. But if there be no such distinction, then, with ever}' respect for that clear-headed and learned judge, m}' brother Blackburn, 1 cannot assent to the proposition contained in his work on Contracts to the extent contended for. "Williams, J. I am of the same opinion. It cannot be contro- verted that in point of fact there was a good and lawful contract for the sale of the goods, the price of which is sought to be recovered. It is clear, however, that as the price is greater than £10 the contract, though good, would not be actionable unless the requisites of the Stat- ute of Frauds have been complied with. [His Lordship here read the 17th section of that statute.] The effect of that section is that, though there is a valid verbal contract, it is not actionable unless something of several things has happened, one of which is the existence of a note or memorandum in writing of the bargain signed by the party to be charged. As soon as that occurs, the contract, though not previously actionable, becomes actionable ; and the question therefore is, whether in the present case there exists such a memorandum as the statute refei-s to. It appears to me that there does. The letter of the defend- ant refers to all the essential terms of the bargain ; and the only question is, whether it is less sufficient because it is accompanied b}' a statement that the defendant does not consider himself liable for the loss arising from the default of the carrier. I do not consider that it is so. It is said that there is a difficult}' in maintaining such a doctrine from the inconvenience which may arise from the propert}- not passing until the contract becomes an actionable contract. That may be so ; but the same objection would apply to the case of part payment or part acceptance, and no one doubts that the verbal contract might be set up where these have afterwards occurred. I agree with mj- Lord in thinking that the reasons given in m}' brother Blackburn's book are not sufficient. I do not think that the question whether the party writing the letter had a right to put an end to the contract could affect the question whether there was or was not a good contract. The inten- tion of such part}' to abandon or not the contract can have nothing to do with the question whether there is a sufficient memorandum or not of the contract. AViLLES, J. I am of the same opinion. Assuming there to be a valid contract, the defendant would be bound to pay for these goods ; and not having done so, there would be good cause of action. Now, at common law it is clear there would exist in this case a good cause of action ; but it is said that the defendant is not liable by reason of the Statute of Frauds. I think, however, that the defendant is liable, and I found my opinion on the 17th section of that statute. It appears that there is no authority on tlie subject in favor of either part}-, with the exception of the dictum of my brother Blackburn, and that must be taken in connection with the statute itself. Now, it is necessary to SECT. VII.] GIBSON V. HOLLAND. 947 look at the words of the statute ; the}- are, that the contract shall not be good unless, amongst other things, " some note or memorandum in writing of the said bargain be made and signed by the parties to be charged by such contract." It follows, therefore, from these words that, if there be any note or memorandum in writing of the bargain signed by the party to be charged, the contract is to be allowed as at com- mon law. Then is there in the present case a memorandum in writing containing the terms of the bargain ? I think that on the true construc- tion of the defendant's letter of the 3d of December there is such a memorandum within the meaning of the statute. It has been argued that there is not, because the statement in the letter is accompanied by a i-epudiation of the bargain ; but I think that to hold that such letter is not on that account a note or memorandum of the bargain would be to disregard the word " some " in the statute. There is here a note in writing of the bargain ; and the statute does not say that where tliere is such, the statute is not to be satisfied if there exist also ether circumstances. Keating, J. There is no doubt a valid contract for the goods in question if it be sufficiently evidenced by some writing in order to sat- isfy the statute. There is such evidence here of the contract in the defendant's letter up to a particulau portion of it. Then does it cease to be evidence because the defendant goes on afterwards in the letter to say that he ought not to be bound by it? I think it does not, and I should have had no doubt about it but for the opinion of my brother Blackburn in his work on Contracts. Ilule absolute to enter verdict for the plaintiff s for £38 lOs. 6c/. GIBSON AND Another v. HOLLAND. In the Common Pleas, November 9, 1865. [Repoited in Law Reports, 1 Common Pleas, 1.] This was an action to recover the price of a horse bargained and sold by the plaintiffs to the defendant. Plea, never indebted. The cause was tried before AVilles, J., at the Devonshire summer assizes. The plaintiffs, Gibson and Luke, are horse dealers at Exeter. The defendant is a gentleman who occasionally deals in horses. 1 Wilkinson v. Evans, L. K. 1 C. P. 407; IJuxtdii v. Rust, L. I{. 7 Ex. 279; Elliott v. Dean, Cab. & E. 283; Dniry v. Young, 58 Md. .04(i; Ilciduinau v. Wolt'.stein, 12 Mo. A]>p. 366*; Cash v. Clark, Gl Mo. App. 03G; Louisville Variiisli Co. v. Lovick, 29 S. C. 533; Mar- tin V. Haubncr, 20 Can. S. C. 141, ace. Sec Westmoreland v. Carson, 7G Tex. G19. Some .■statutes, however, especially in regard to land, refjuire the "contract" to be in writing. See Montauk Assoc, v. Dalv, 62 N. Y. App. Div. 101; Sowards v. Moss, 58 Neb. 119, 59 Neb. 71. 948 GIBSON V. HOLLAND. [ciIAr. VL Having heard from one Rookes, a horse dealer of Exeter, that the plaintifls had a mare which was likely to suit him, and having seen and approved of her, the defendant authorized Rookes to bu}' her for him, if he could, for fortj' guineas. Rookes accordingly made the purchase at that price, and communicated that fact to the defendant in a letter, as follows : — 15th May, 1865. I have heard from Mr. Gibson and seen Tom Luke this morning respecting the bay mare, and have bought her for forty guineas. Will you tlierefore forward me your cheque, with instructions how she is to be sent? Wm. Rookes. Receiving no reply, Rookes addressed the following letters on the 20th and 23d of May, 1865, respectively, to the defendant: — I wrote you on Monday last to sa}' I had, in accordance with j'our request, purchased Mr. Gibson's bay mare for you at forty guineas, requesting 3-ou would send me a cheque, with instructions how to forward her. Not having received any reply, I tear you must have been absent. Please send me cheque at once, with necessary instruc- tions. Wm. Rookes. I cannot but express my surprise at not having received an}'' replj' to m}- letters of the 15th and 20th. In the first I informed you that I had purchased Mr. Gibson's bay mare ; and in the second I asked you to send a cheque for the same, viz., £42, in order that I ma}' settle with him. Mr. Luke has called again this morning ; and it makes me loolc very foolish, as of course they look to me to fulfil m}' contract ; and I hope that 3'ou will on the receipt of this send me the cheque, with the necessary instructions how the mare is to be forwarded. Wm. Rookes. On the 25th of Ma}', 18Go, the defendant wrote to Rookes, as follows : — I onl}' returned home j'esterday evening, or I should have at once answered your first letter, and sent 3'Ou a cheque for the mare which you were kind enough to buy for me. I am glad to say I have sold her to Mr. Toynbee. When I told him of her, he said he knew her well, and would buy her from me, which he did ; and 30U will receive a cheque for her from me b\' this evening's post. C. Holland. On the 26th of May, Rookes wrote in reply to the last letter : — Mr. Toynbee has never seen the mare that 3'Ou have purchased. The one he alludes to I sold Mr. Gibson for Sir L. P., and she is not for Bale at an}' price. You will therefor please to rectify this mistake, and send me your cheque, as it is a fortnight to-morrow since I bought her for you, and she has been standing at livery ever since. Wm. Rookes. SECT. VII.] GIBSON V. HOLLAND. 949 On the lOtli of June, Rookes wrote again to the defendant: — Mr. Gibson and Mr. Luke called here this afternoon ; and as they have both failed in seeing j-ou in London, the}- now call upon me to complete my contract for the sale of the mare. You are fully aware that you conmiissioned me to buy the mare for you ; and had I thought there would have been any trouble or annoyance, I should have had nothing to do with it ; but, simply acting as your agent, I must request that you will at once remit me your cheque for £42, cost price, together with half the keep, two guineas, as it is a month ago next Monday that I bought her for you, and she has been standing at livery ever since, and they has'e a perfect right to claim the whole of the keep. Wm. Rookes. On the 16th of June, Rookes again wrote to the defendant : — Messrs. Gibson & Luke have been and seen me again to-day respect- ing the baj' mare which you told me to purchase from them for 3-ou ; and they have threatened me with an action, &c. Rookes, having on the 17th o^ June received a letter from the plain- tiffs' attcrn'^ys, demanding payment from him of £-lG alleged to be due from him for a brown mare sold by them to him, and her keep, sent it to the defendant, writing, — This morning's post brought me the enclosed from Messrs. Gibson & Luke's solicitors ; I really do hope that you will not allow me to be put to any further trouble or annoyance in thiis most unpleasant matter, but at once remit 3'our cheque either to me. [/S'lc] If they sue me, I have no alternative but to sue them or you. On the part of the defendant it was objected that there was no con- tract in writing to satisfy the 17th section of the Statute of Frauds. For the plaintiffs it was insisted that the correspondence amounted to a contract, or at all events to a sufficient memorandum of a contract to charge the defendant. Under the direction of the learned judge a verdict was found for the plaintiffs for the sum claimed, reserving to the defendant leave to move. KarslaJce, Q. C., moved to enter a nonsuit. EuLE, C. J. I am of opinion that there should be no rule. The contract for the purchase of the mare in question was made by Rookes. If Rookes was the agent of both parties, there was nothing to reserve ; therefore I [)lace no reliance on that. But I am of opinion that the letters put in, taken together, do amount to a sudicient note or memo- randum of the contract within the 17th section of the Statute of Frauds. Apart from the statute, it is beyond doubt that Rookes made a contract on behalf of the defendant to buy the plaintiffs' mare. The defendant relies upon the 17th section, which enacts that no con- tract for the sale of any goodS; &c., for the price of £10 or upwards. 950 GIBSON V. HOLLAND. [CHAP. VL shall be allowed to be good, except the buyer shall accept part of the goods so sold and actually receive the same, or give something in earnest or part payment, or unless " some note or memorandum in writing of the said bargain be made and signed by the parties to be charged by such contract or their agents thereunto lawfully author- ized." The defendant's letters amount to a clear admission that Rookes did make on his behalf the contract which is described in that correspondence. But the olijection relied on is that the note or mem- orandum of that contract was a note passing between the defendant, the part}' sought to be charged, and his own agent, and not between the one contracting party and the other. The object of the Statute of Frauds was the prevention of perjur}' in the setting up of contracts by parol evidence, which is easil}' fabricated. With this view it requires the contract to be proved by the production of some note or memorandum in writing. Now a note or memorandum is equall}' corroborative, whether it passes between the parties to the contract themselves or between one of them and his own agent. Indeed one would incline to think that a statement made by the party to his own agent would be the piore satisfactorv evidence of the two. Then how stand the authorities on the subject? In Leroux v. Brown, 12 C. B. 818, 22 L. J. (C. P.) 1, in support of the position that a letter addressed by the defendant to a third person, containing an admission of a contract with the plaintiff, will be enough to charge the former, Sir G. Honyman refers to Sugden's V. & P. (11th ed.) 122, where it is said that " a note or letter written by the vendor to any third person, containing directions to carry the agreement into execution, will be a sufficient agreement to take a case out of the statute ; " and for this the learned author vouches Lord Hardwicke, who in Welford v. Beazely, 3 Atk. 503, says : " The meaning of the statute is to reduce contracts to a certainty, in order to avoid perjury on the one hand and fraud on the other ; and therefore, both in this court and the courts of common law, where an agreement has been reduced to such a certaint}', and the sub- stance of the statute has been complied with in tlie material part, the forms have never been insisted on. Hawkins v. Holmes, 1 P. Wms. 770. There have been cases where a letter written to a man's own agent, and setting fortli the terms of an agreement as concluded by bim, has been deemed to be a signing within the statute, and agreeable to the provisions of it." See Clerk v. Wright, 1 Atk. 12. Sir E. Sug- den goes on to say that " the point was expressly determined in the year 1719 in the Court of Exchequer. Upon an agreement for an assignment of a lease, the owner sent a letter specifying the agreement to a scrivener, with directions to draw an assignment pursuant to the agreement ; and Chief Baron Bury, Baron Price, and Baron Page were of opinion that the letter was a writing within the Statute of Frauds." Smith V. Watson, Bunb. 55. These cases, it is true, arose upon the 4th section of the statute, but the analogy holds equally good as to the 17th section. In the case referred to by my brother Willcs, of Bailey SECT. VII.] GIBSON V. HOLLAND. 951 V. Sweeting, 9 C. B. (n. s.) 843, 30 L. J. (C. P.) 150, this court went very full}' into the general doctrine, and came to the conclusion that a letter which contained an admission of the bargain, and of all the sub- stantial terms of it, was a sufficient note or memorandum of the contract to satisfy the 17th section, notwithstanding the writer repudiated his liabilit}'. To satisfy the statute, j'ou must have the oral statement of the contract corroborated by an acceptance of part of the goods or a part payment of the price, or you must have some note or memorandum in writing of the bargain. If so, the danger of perjury, which the statute was designed to exclude, is abundantly guarded against if there be a written statement of the terms of the contract, signed b}' the party to be charged, made to an agent. For these reasons I feel bound to hold that the requirements of the statute have been complied with in this case, and consequently that there should be no rule. Wili.es, J. I agree. The statute in § 17 imposes it as a condi- tion to the validit}' of a contract for the sale of goods for the price of £10 and upwards, either that there shall be an acceptance of part of them, or that something shall be given as earnest or in part pa}'- ment of the price, or that there shall be some note or memorandum in writing of the bargain, signed bj' the party to be charged or by his lawfully authorized agent. Whelaer Rookes was the agent of the plaintiffs as well as of the defendant, I do not stop to inquire. But I think the series of letters, read together, contains a statement of the bargain, and an admission by the defendant that Rookes bought the mare of the plaintiffs on behalf of the defendant and for the price mentioned therein. The parties are named in a writing signed by the person who is sought to be charged ; and the subject-matter of the contract and the price are both mentioned. Nothing is wanting to make a complete memorandum of the bargain, unless it be necessary that the document should be addressed to the person who is to take advantage of it. I apprehend the 17th section imposes no such con- dition. Both the 4th and the 17th sections seem to be framed for the purpose of absolving contracting parties from liabilit}', unless under § 4 the agreement upon which the action is brought, or some mem- orandum or note thereof, shall be in writing and signed, &c., or under § 17 unless there be acceptance or part payment, or some note or mem- orandum in writing of the bargain made and signed by the party to be charged thereby, — the words of the latter clause not bearing quite so comprehensive a meaning as those of the former. Taking the 17th dection, which stands upon a different footing from the 4th in the par- ticulars which called for the interference of the Legislature in the recent Mercantile Law Amendment Act, 19 & 20 Vict. c. 97, and on which our judgment must proceed, there is a total absence of any indication of intention that the note or memorandum must be addressed or de- livered to the person who is to have a remedy upon it : all the section requires is that there shall be written evidence of the contract. Pro- vided 30U have in writing an admission by the party to be charged of 952 GIBSON V. HOLLAND. [CIIAP. VL the bargain having been made, the requirement of the statute is satis- fied, though tlie meniorandum does not sliow a contract in the sense of its being a complete agreement, and intended to be the exclusive evi- dence of the right on one side and of the liability on the other, as the final written agreement between the parties would be. This section uses a word which seems to afford a ke}' to its construction ; it requires that tliere shall be, not an}- particular kind of memorandum, but " some note or memorandum of the bargain." There is a note or memorandum of the bargain in this case. I cannot help thinking that Bailey v. Sweeting, 9 C. B. (n. s.) 843, 30 L. J. (C. P.) 150, disposes of this case, because, though the memorandum there did not show a contract in the sense of an agreement, inasmuch as the defendant in terms repudiated his liability, 3'et as the letter contained evidence of the terms upon which he had once contracted to be bound it was properly lield to be a suffi- cient memorandum to satisfy the statute. Great difficulty has arisen as to the construction of this section, as being applied to evidence only ; and I have on former occasions expressed the inabilit3' I felt to under- stand the case of Leroux v. Brown, 12 C. B. 801, 22 L. J. (C. P.) 1, though of course we are bound by it. It affords however a remarkable confirmation of the correctness of the construction we now put upon the statute, however questionable some persons may have thought the decision to be. There is another difficulty. It has been held that the memorandum must exist before the action is brought. Bill v. Bament, 9 M. & W. 36. This would seem to show that the memoran- dum is in some wa}'^ to stand in the place of a contract. But I cannot help thinking that the courts in deciding cases of that description con- sidered the intention of the Legislature to be of a mixed character, — that it was intended to protect persons from actions being brought against them to enforce contracts of which there was no evidence in writing, and that the written evidence should be existing at the time when the action is instituted. It is too late however now to object to those cases. I come round to the section itself There is no authority which compels us to accede to the construction which Mr. Karslake asks us to put upon it. There is no reason for it ; and I think it would be iloing violence to the language used. I think the letters in question do constitute a sufficient memorandum of the contract to answer all the requirements of the statute. Byles, J., who had not heard the whole of the argument, expressed no opinion. Keating, J., concurred. -Kw^e refused. 1 Moore v. Hart, 1 Vern. 110; Ayliffe v. Tracy, 2 P. Wms. 65; Owen v. Thomas, 3 Myl. & K. 353; Moss v. Atkinson, 44 CaL 3; Spangler v. Danforth, 65 111. 152; Wood v. Davis, 82 111.311; Gaines v. McAdain, 79 111. App. 201; Fugate v. Hansford's Ex., 3 Litt. 262; Kleeman v. Collins, 9 Bush, 460 ; Moore v. Mountcastle, 61 Mo. 424; Cunningham v. Williams, 43 Mo. App. 629; Cash v. Clark, 61 Mo. App. 636; Mizell v. Burnett, 4 Jones L. 249; Lee v. Cherrv, 85 Tenn. 707, ncc. First Bankv. So'wles, 46 Fed. Rep. 731; Steel r. Fife, 48 la. 99; Morrows. Moore, 98 Me. 373; Kinloch v. Savage, Speers Eq. 464j Buck v. Pickwell, 27 Vt. 157, 167, contra. SECT. VII.] EGERTON V. MATHEWS. 953 EGERTON V. MATHEWS and Another. In the King's Bench, February 12, 1805. [Reported in 6 East, 307.] This was an action on the case against the defendants for not accept- ing and paying for certain goods which they had contracted to purchase by the following memorandum ij writing: "We agree to give Mr. Egerton 19c?. per lb. for 30 bales of Smyrna cotton, customary allow- ance, cash 3 per cent., as soon as our certificate is complete." Signed, Mathews and Turnbull, and dated 2d Sept., 1803. The defendants had before become bankrupts, and their certificate was then waiting for the Lord Chancellor's allowance, and after it was allowed they signed the memorandum again. On the opening of the case at the trial after last term at Guildhall it was objected, on the authority of Wain v. Warlters, 5 East, 10, that, the contract being altogether executory, and no consideration appearing on the face of the writing for the prom- ise, nor any mutuality in the engagement, it was void by the Statute of Frauds, 29 Car. 2, c. 3. And it aot being at that time adverted to that the case cited turned upon the meaning of the word "agreement" (i. e., to pay the debt of another) in the 4th clause of the statute, and that this case was governed altogether by the 17th clause, the object and wording of which is different, and which has not the word "agree- ment," the plaintiff was nonsuited. But on a motion for setting aside the nonsuit, when the attention of the court was called to the difference of the two clauses, Lord EUenborough, C. J., on granting a rule nisi expressed his assent to the distinction between the two cases, and said that the nonsuit had proceeded upon a mistake at the trial in supposing that they were tlie same. And on this day when The /Solicitor- General and Marryat were to have shown cause against the rule (after suggesting that the words " contract" and " bar- gain" in the 17th section implied mutuality and consideration as much as the word " agreement " in the 4th clause, and therefore brought ,the case within the principle of the former decision), finding that the whole court were decidedly of opinion that the action was sustainable upon the 17th section of the statute, they relinquished any further opposition to the rule ; and Lord Ellenborouoh, C. J., observed that the words of the statute were satisfied if tliere were "some note or memorandum in writing of the bargain, signed b}' the parties to be charged by such contract." And this was a memorandum of the bargain, or at least of so much of it as was sufficient to bind the parties to be charged therewith, and whose signatures to it is all that the statute requires. Lawrence, J. The case of Wain v. Warlters proceeded on this, that in order to charge one man with the debt of another the agreement 954 STEWART & SON V. COOK. [CHAP. VI. must be in writing ; which word " agreement " we considered as pro- perly including the consideration moving to, as well as the promise by, the party to be so charged ; and that the statute meant to require that the whole agreement, including both, should be in writing. The other judges concurring. Jitde absolute} STEWART & SON v. COOK. Geobgia Supreme Court, July 13-August 13, 1903. [Reported in 118 Georgia, 541 .] Lamar, J. The written contract of sale refers to square and round bales, but is silent as to the weight of either form, or as to the cus- tomary meaning of the term. If nothing more appeared, it might be that evidence could have been introduced to show what was the stand- ard weight and trade meaning of square bale and round bale. Pol. Code, § 1 (4) ; Civil Code, § 3675 (2). But the petition shows that the parties themselves agreed that the bales should be of a particular weight. It therefore appears that there was a parol agreement, when the law requires that the contract of sale shall be in writing (Civil Code, § 2693, par. 7) ; by which it of course means the entire contract, with all stipulations and provisions which have been assented to by the parties at the time of the sale. Where some of the terms are in writing and others in parol, the requirements of the statute are not met ; and the court rightly sustained the demurrer. See Turner v. Lorillard Co., 100 Ga. 645. Judgment affirmed. By five Justices. 1 "A written offer accepted by parol is a sufficient memorandum to satisfy the Statute of Frauds." Lvdig v. Braman, 177 Mass. 212, 218; Hoadly v. M'Laine, 10 Bing. 482; Reuss V. Picksley, L. R. 1 Ex. 342; Stewart v. Eddowes, L. R. 9 C. P. 311; Gradle v. Warner, 140 III. i23; Doherty v. Hill, 144 Mass. 465; Howe v. Watson, 179 Mass. 30; Aus- trian r. Springer, 94 Mich. 343; Kessler v. Smith, 42 Minn. 494; Waul v. Kirkman, 27 Miss. 823; Lash v. Parlin, 78 Mo. 391; Argus Co. v. Albany, 55 N. Y. 495; Mason v. Decker, 72 N. Y. 595; Raubitchek v. Blank, 80 N. Y. 478; Bristol v. Mente, 79 N. Y. App. Div. 67; Tha.ver v. Luce, 22 Ohio St. 62; Himrod Co. v. Cleveland Co., 22 Ohio St. 451; Lee V. Cherry, 85 Tenn. 707; Lowber v. Connit, 36 Wis. 176; Hawkinson v. Harmon, 69 Wis. 551, free. Banks v. Harris Mfg. Co., 20 Fed. Rep. 667; Haw v. American Nail Co., 89 la. 745; American Leather Co. v. Porter, 94 la. 117; Newlin v. Hoyt, 91 Minn. 409; Kingman r. Davis, 63 Neb. 578; Spence v. Apley, 94 N. W. Rep. 109 (Neb.); Montauk Assoc. V. Daly, 62 N. Y. App. Div. 101, aff'd without opinion, 171 N. Y. 659, contra. The statutes under which these cases last cited arose required the " contract" to be in writing, except in Banks v. Harris Mfg. Co. SECT. VII.] HANSON V. MAESH. 955 HANSON y. MARSH. Minnesota Supreme Court, December 27, 1888. {Reported in 40 Minnesota, 1.] Dickinson, J. The principal ground of recovery, as set forth m the complaint, and as presented in the case, is the breach of an alleged contract for the sale to the plaintiff, by the defendant, of a threshing- machine, consisting of a separator and engine. The plaintiff had a verdict for damages. It will only be necessary, upon this appeal from an order denying a new trial, to decide as to the validity of the alleged contract with regard to the Statute of Frauds. The following written instrument, signed by the defendant, is relied upon as a sufficient memorandum of the contract to answer the requirements of the stat- ute : " Glencoe, 20th May, 1887. I, John Marsh, having this day sold to Hans Hanson, of the town of Helen, county of McLeod, a certain threshing-machine (of the Agitator Separator manufacture, and a twelve-horse Minnesota Giant engine), and do by this writing agree to run with said Hans Hanson (assisting him in the running of this machine) for the term of one mOnth, at the rate of two dollars per day. And I further bind myself not to purchase another machine for the term of two years, or to have anything to do with the running of any other machine. John Marsh." It is alleged in the complaint, and further appears from the evidence in the case, that the price or consideration to be paid by the plaintiff, in performance of his part of the agreement, was $1,100. This may be taken to have been an entire price or consideration, both for the sale of the property and for the further obligation of the defendant, as expressed in the above written instrument. The plaintiff, however, alleges in his complaint that the value of the property agreed to be sold was $1,400, and that the value of the defendant's good-will and assistance in the business was $200. Deducting the latter sum from the whole contract price, it seems that, according to the estimate of the plaintiff, the sum which could be ascribed as the price of the property agreed to be sold was not less than $900. The evidence, too, goes to show that the sale of the property was the principal subject of the transaction, to which the furtlier agreement expressed in the memorandum was merely incident; and upon the whole case it cannot be doubted tliat of the whole stipu- lated price, 81,100, the greater part represented, in the contemplation of both parties, the price of the property agreed to be sold. Such being the case, the agreement involved a contract for the sale of chat- tels " for the price of fifty dollars or n:iore," within the meaning of the statute, wliicli requires a note or memorandum of such contract to be made in writing. Such a contract is within tlie statute ; although it also embraces some other agreement to which the statute is not applicable. Ilarman v. Reeve, 18 C B. 587; Irvine v. Stone, G Gush. 956 HANSON V. MARSH. [CHAP. VI. 508. And see Hodgson v. Jolmsou, El. Bl. & El. 685, and Rand v. Mather, 11 Cush. 1. While it appears, both from the pleadings and from the evidence, that there was a definite stipulated price to be paid by the plaintiff, it will be observed that the memorandum contains no statement of or allusion to it. The price is an essential element in a contract of sale, and a memorandum which does not state the price — unless, perhaps, in cases where, no price being stipulated, it is left to be measured by the rule of reasonable or market value — is insufficient to satisfy the statute, and the contract is, by the terms of the statute, void. Elmore V. Kingscote, 5 Barn. & C. 583 ; Acebal v. Levy, 10 Bing. 376 ; Goodman v. Griffiths, 1 Hurl. & N. 574 ; Ide v. Stanton, 15 Vt. 685 ; Waterman v. Meigs, 4 Cush. 497 ; Ashcroft v. Butterworth, 136 Mass. 511 ; Stone v. Browning, 68 K Y. 598, 604 ; James v. Muir, 33 Mich. 223 ; Browne, St. Frauds, § 376 ; 1 Benj. Sales, p. 271, § 251 ; 2 Schoulers, Pers. Prop. § 492. The order denying a new trial is reversed.^ ^ It seems generally admitted that the price must be stated if a price was agreed upon, Browne on the Statute of Frauds, §§ 376, 377 ; and in jurisdictions where it is also held that the consideration for the contract must appear in a memorandum, no doubt can arise on this point. But in some jurisdictions of the United States it is held that the consideration need not be stated ; and this has been enacted by statute in Illinois, Indiana, Kentucky, Maine, Massachusetts, Michigan, Nebraska, New Jersey, and Virginia. In Hayes v. Jackson, 159 Mass. 451, an action upon a contract for the sale of land, the only memorandum of the sale stated the sale to be "for the sum of $14,140, sub- ject to a mortgage of 8,000 dollars." It was agreed by both parties at the trial that the assumption of the mortgage was part of the consideration and went to make up the sum of $14,140. A majority of the court held the contract enforceable, holding that Pub. Stats, c. 78, § 2, making any statement of the consideration unnecessary, made an erroneous statement unimportant. Holmes, J., delivering the opinion of the majority, said : " Of course it may be said that, in a bilateral contract like the present, the contemporaneous payment of the price is a condition of the promise, and therefore that tlie promise cannot be set forth truly unless the consideration is stated. But the language of the section is general, and should be read as no doubt it was meant. The only effect is that a promise set forth as absolute may be subject to an implied condition of performance on the other side. When such an implied condition exists it will be con,strued into the writing, and knowledge of the law gives notice of its possible existence. In some cases it has been held unnecessary to state the con- sideration, even when there is no provision like our § 2, although the consideration was executory. Thornburg v. Masten, 88 N. C. 293 ; Miller v. Irvine, I Dev. & Bat. 103; Ellis V. Bray, 79 Mo. 227 ; Violett v. Patton, 5 Cranch, 142 ; Camp v. Moreman, 84 Ky. 635. In How v. Walker, 4 Gray, 318, Thomas, J., plainly indicated the opinion that § 2 of the statute applies in all cases, pointing out that this does not mean that when the parties are reversed the oral agreement will be sufficient to sustain an action." Field, C. J., with whom Knowltou, J., concurred, wrote an elaborate dissenting opinion, saying in part : " I do not know whether the majority of the court intend to make a distinction between contracts of sale described in tlie first section of Pub. Stats. c. 78 [land], and contracts of sale described in the fifth section [goods, wares, and merchandise]. . . . When the whole contract or promise of the defendant is to do a certain thing, and this is an absolute promise, resting upon a consideration which has been executed, there is some reason in saying that the memorandum signed by the SECT. VII.] CHAMPION V. PLUMMER. 957 CHAMPION Ai^D Akother v. PLUMMEE. In the Common Pleas, May 13, 1805. [Eeported in 1 New Reports, 252.] This was an action against the defendant for not delivering to the plaintiffs 20 puncheons of treacle bought of him by the plaintiffs at 37s. per cwt., to be delivered on the 10th of December ; 20 puncheons at 36s. 6d. per cwt., to be delivered on the 31st of October ; and 10 puncheons at 375. per cwt., to be delivered on the 1st of November. At the trial before Sir James Mansfield, C. J., at the Guildhall sit- tings after last Hilary Term, it was proved that a bargain for the treacle in question was made between the plaintiffs' clerk and the defendant, as stated in the declaration, and that the following note was made by the plaintiffs' clerk in a common memorandum book and signed by the defendant as under : — defendant need not contain the consideration or inducement of the contract or promise. But in a contract executory on both sides, where the promises are mutual, and each is the consideration of the other, the promises are conditional, and one party agrees to per- form his part of the contract only on condition that the other will perform his part, and it cannot be known what the promise of the one is without knowing the express or implied promise of the other. A promise to convej' land because the promisee has actually re- ceived ^1,000 is not the same as a promise to convej' land if the promisor will pav .^1,000 on receiving the convej'ance, and a promise to convej' land for .'$1,000 to be paid on the delivery of the deed is not the same as a promise to convey land for .SlOiOOO to be paid on the delivery of the deed. The conditions on which the vendor agrees to convey are often manj' and complicated, and involve the assumption of mortgages and the performance of other acts. If a mere acknowledgment in writing by the vendor that he has agreed to convey specific land to the vendee on terms which are not expressed is sufficient to satisfy the Statute of Frauds, then it is open to the vendee to prove by oral testimony the price to be paid, and all tiie other terms of the contract to be performed by him, and the statute will no longer prevent fnuids and perjuries. If it is a condition of the promise of the vendor that it is not to i)e performed unless at tiie time of the performance the vendee pays money and gives or assumes mortgages, the condition (|ualilies the promise and is a part of it, and the writing should contain ad that is essential to show what the ])roniise or contract on the part of the vendor in fact was. The decision of the court seems to me in great part to nullify' the statute." Compare Reid v. Diamond Glass Co., 85 Fed. Rep. 193 (C. C. A.); Ruzicka v. Hotovy, 101 N. W. Rep. 328 (Neb.); Drake v. Seaman, 97 N. Y. 230; Barney v. Forbes, 118 N.'V. 580, 585; Dyer v. Winston, 77 S. W. Rep. 227 (Tex. Civ. App.). It should be noticed that in the Massachusetts statute of frauds, and in the corresponding statutes of most other States in which it is provided that the consideration need not be stated, the provision does not necessarily apply to the section in regard to the sale er the Moga- dore, lying in the London Docks, at 55s. per cwt. in bond ; customary allowance for tare and draft ; 2^ per cent, discount for cash in fourteen dajs, or four months' credit. The gum remaining in the seller's name at the docks. This entry in the broker's book was not signed by the broker or any other person. Between nine and ten o'clock at night of the said 23d February the broker sent to the plaintiff and defendant respectively paper writings, commonly called bought and sold notes, copied from the entry in his book and signed by him. Between nine and ten o'clock in the morning of the 24th February the defendant objected to and returned the sold note to the broker, and wholly refused to deliver the gum. Whereupon this action was brought. Late, for the plaintiff. Chitty, contra- Cur. adv. vult. The judgment of the court was now delivered by Abbott, C. J. It appears in this case that Virgo the broker was authorized by the defendant to sell the goods in question, that he con- tracted for the sale of them to the plaintiff, entered a memorandum of the bargain in his broker's book but did not sign that entry, and then sent to each of the parties a copy of the memorandum signed by him- self. The only objection to the validity of the contract is the want of his signature to the memorandum in the book. It is clear that the contract was made in such a manner as to bind the defendant within the requisites of the Statute of Frauds. If therefore it is to be held invalid, this can only be done on the ground of some usage or custom of merchants which the court is at liberty to recognize as a part of the common law. No such usage has been found or stated as a fact upon the present occasion. There are several cases in the books in which this point has been noticed. They were all quoted in the argument at the bar, and it is unnecessary to repeat them. A signed entry in the broker's book, and signed notes conform- able to each other delivered to the parties, are spoken of as making a valid contract: the entry in the book has been called the original, and the notes copies ; but there is not any actual decision that a valid con- tract may not be made by notes duly signed if the entry in the book be unsigned ; and in one case the late Lord Chief Justice Gibbs is reported SECT. VII.] HAWES V. FOESTER. 987 to have spoken of some supposed decision to that effect as having Tjeeu overruled. Under such circumstances we cannot say that the rule for which the defendant contends has been adoptec( by the court as part of the law merchant. Strong expressions as to the duty of the broker to sign his book do not go far enough for this purpose, nor does the obligation to do this which, a broker is supposed to enter into upon receiving a license to practise in the city of London. Brokers are, I believe, established in the principal commercial towns on the continent under municipal regulations calculated to obtain punctuality and fidel- ity in their dealings ; and the signature of their book is certainly one method of insuring these, and may in some cases furnish evidence and facilitate the proof of a contract. We have no doubt that a broker ought to sign his book, and that every punctual broker vill do so. But if we were to hold such a signature essential tctbe validity of the con- tract we should go further than the courts have hitherto gone, and might possibly lay down a rule that would be followed by serious incon- venience, because we should make the validity of the contract to depend upon some private act of which neither of the parties to the contract would be informed, and thereby place it in the power of a negligent or fraudulent man to render the engagement of parties valid or invalid at his pleasure. For these reasons we think the plaintiff is entitled to retain the verdict. Postea to the plaintiff. HAWES AND Another v. FORSTER and Another. At Guildhall, coram Lord Denman, July 3, 1834. [Rejwrted in 1 Moody ^- Robinson, 3G8.] Assumpsit to recover the sum of £320, being the amount of damages sustained by the plaintiffs by the non-delivery of oil on the 30th of June, 1831, pursuant to contract. Plea, general issue. This was the second trial of the action. On the first trial (which took place before Ld. C.J. Denman and a special jury at tlie London sittings after Micliaelinas term, 1832), it appeared tliat tlie oil liad been bought by the plaintiffs of the defendants through Mr. Wriglit, one of the sworn brokers of the city of London. The plaintiffs on tliat occasion put in the bought note, wliich was in the following terms: — Bought for Messrs B. T. and W. Hawes, of Messrs. Forstcr and Smith, from 80 to 100 tons of pahn oil of merchantable quality, free from dirt und water, at £2G per ton, payable per cash, &c. 'i'he above oil warranted to arrive on or before the 30th of June (current), ex I're- mier, Fullerton, Cape Coast. Customary allowances. Thomas Wright, Broker. London, 27th of Ma}-, 18.31. 988 HAWES V. FORSTEK. [CHAP. VI, And I\Ir. "Wright, being called by the plaintiffs and having proved his being employed by the defendants to sell the oil, said that he made and signed an entry of the contract in his broker's book ; that the bought note was written by his clerk, and signed by himself; that the entry was made, and the bought and sold notes written and sent to the respective parties on the same evening, but whether "the entry or the notes were first written he could not say. The plaintiffs proved that on the day mentioned in the bought note (30th of June) they required the defendants to deliver the oil ; and that, default being made, they had bought other oil at an advanced price. The sold note was not called for by the plaintiffs on the trial ; whereupon Campbell, S. G., for the defendants, submitted that the plaintiffs must be nonsuited. It was the universal usage to produce both the bought note and the sold note ; and there was no e ;idence of a binding con- tract between the parties without producing the two instruments and showing their correspondence with each other. Sir J. Scarlett^ for the plaintiff. The bought note which has been produced b}- the plaintiffs is evidence of a contract signed by Mr. Wright, who is proved to be the agent of the party charged therewith. It is not necessary for the plaintiffs to go further. Denman, Ld. C. J., was of opinion that the plaintiffs were not called upon to give any evidence of the sold note delivered by the broker to the defendants. Campbell, S. G., then offered to produce the broker's book, according to which (as he suggested) the defendants were not to be bound by the contract unless the ship mentioned in the bought note should arrive by the 30th of June. And he contended that the entry in the broker's book formed the original contract ; the bought and sold notes being in fact only minutes of the contract furnished by the broker to the two parties. And he cited Heyman v. Neale, 2 Campb. 337 ; Grant v. Fletcher, 5 B. & C. 436 ; Goom v. Aflalo, 6 B. & C. 117. Sir J. Scarlett, contra, relied upon the case of Thornton v. Meux, M. & M. 43, as the last authority upon the subject, distinctly showing that the entry in the broker's book is not admissible in evidence to contradict the bought note. Dexmax, Ld. C. J. I am of opinion that the plaintiffs have proved a contract by producing the bouglit note signed by Mr. Wright, and showing that person to have been the agent engaged by the defendants to dispose of the oil. It is not shown that the sold note delivered to the defendants differed from the bought note delivered to the plaintiffs ; had that been shown to be the case, it would have been verj' material ; but in the absence of all proof of that nature I am clearl}' of opinion that I must look to the bought note^ and to that alone, as the evidence of the terras of the contract ; the defendants shall, however, have leave to move for a nonsuit. The evidence was rejected ; and under the direction of his Lordship the jury returned a verdict for the plaintiff. SECT. VII.] HAWES V. FORSTEK. 989 In Hilaiy term following, Campbell, S. G., obtained a rule to show cause vihy the verdict should not be set aside, and a nonsuit entered on the ground of the non-production of the sold note ; or else why a new trial should not be granted on the ground that the entry in the broker's book formed the contract, and that such book ought, therefore, to have been received as evidence for the defendants on the trial. The rule as to the nonsuit was discharged ; but the rule for a new trial was, after argument and time taken by the court for consideration, made absolute ; the Lord Chief Justice saying that the court doubted whether the case involved an}' point of law at all, and whether it did not rather turn upon the custom, viz., how the broker's book was treated by those who dealt witli him. Looking to the importance of the ques- tion the court thought it fit to let it undergo further consideration in order that evidence might be given as to the usage of trade in the city ; and his Lordship added that, if it were deemed matter of law, it would be better to tender a bill of exceptions ; if matter of fact, to let the opinion oi the jar}' be taken upon it. The case accordingly now came down for a second trial ; and on this occasion the plaintiffs (after putting in the bought note and examining the broker to the same effect as on the former trial) called upon the defendants after due notice to produce tlie sold note : it was accordingly produced, and corresponded with the bought note already set forth. The plaintiffs then called several of the most eminent merchants in the cit}', all of whom concurred in declaring that they had never known any instance where the broker's book had been referred to, and that they always looked to the bought and sold notes as the contract ; and some of them added that, if the broker's bouglit or sold note (as the case might be) were not consonant with their directions to the broker, they returned it. For the defence, the broker's book was produced ; and the entry respecting the transaction in question was, without oi)position, read. It agreed with the bought and sold notes excepting that, instead of the words, " The above oil warranted to arrive on or before the 30th of June, ex Premier, FuUerton, Cape Coast," the words in the broker's book were, " If the above do not arrive on or before the 30th of June, this contract to be void." Tlie defendants did not call witnesses to rebut the evidence given by the plaintiffs as to the usage ; but they produced a copy of the regulations made in tlie year 1818 by the Court of Alder- men for the conduct of sworn brokers, and which regulations were proved to have been generally circulated.^ 1 According to these rof,'nlati(.ns the broker is directed to enter all contracts on llio day of the inakinj,' thereof, &c., and deliver a contract note to hotli huycr and seller, or either of them, within twenty-four hours after request, containing therein a true co])y of such entry ; and shall, uj.on demand being made by buyer or seller, show such entry to them, to manifest and prove the truth and certainty of such contract. The bond executed bv brokers has, since these regulations, l)ecn conditioned for their making their entries, &c., in the manner pointed out in the regulations : before the making of 990 THOENTON V. CHARLES. [CHAP. VI. Lord DexVman, C. J., in summing up the case said to the jury : '* The only question "before you is, whether the bought and sokl notes consti- tuted the contract ; or whether the entry in the broker's book, which in this case differed from the bought and sold notes, constituted it. I have on a former occasion expressed my own opinion to be, that in point of law the note delivered by the broker to the party is the real contract; that is still my opinion : but it has been thought better that the point should be submitted to you simply as a matter of fact ; that you may say which, according to the usage of trade in this city, has been the binding contract, — the broker's book or the bought and sold notes. If the evidence has satisfied you that, according to the usage of trade, the bought and sold notes are the contract (and the evidence adduced before you to show that they are so considered has not been met by any contradictory evidence from the other side), then you Avill find your verdict for the plaintiffs. Verdict for the plaintiffs. THOENTON axd Another v. CHAELES. In the Exchequer, April 29, 1842. [Rejwrted in 9 Meeson (f Welshy, 803.] Assumpsit for goods sold and delivered, and on an account stated. Plea, Non assumpsit. At the trial before Lord Abinger, C. B., at the London sittings after last Michaelmas term, it appeared that the action was brought for the price of 50 casks of tallow alleged to have been sold and delivered by the plaintiffs to the defendant. On the 20th of February, 1841, the plaintiffs instructed their brokers, Messrs. Smith & Marshall, to sell for them 200 casks of tallow, to be delivered between the 1st of September and the 31st of December following, and on the same day received from the brokers a sold note in the following terms : " London, 20th February, 1841. Sold, for Messrs. B. & E. Thornton & West, to our principals 200 casks of St. Petersburg first sort of yellow candle tal- low," &c. The bought note was in the same terms, except that it stated the purchase to be of 50 casks " for our principals." The entry in the brokers' book was as follows : " London, 20th February, 1841. these rofriilafion.s the broker was only required to enter the contract in his hook within three days after it was made. These regulations were made in consequence of the report of a committee of the corpo- ration of L.indon, appointed on the 7th of March, 1815, to inquire into the practice and general conduct of the brokers of the city. The report of the committee will be found to embrace the whole historj' of the brokers of London. SECT. VII.] THORNTON V. CHARLES. 991 Sold for Messrs. R. Thorton & West (Messrs. Paton & Charles, 50 ; Mr. John Smith, 50 ; Messrs. Cattley & Stephenson, 100) 200 of St. Petersburg first sort of yellow candle tallow," «&;c. All the above docu- ments were put in evidence at the trial. The names of the principals on either side were not disclosed. . . . At the trial it was objected for the defendant that the plaintiffs ought to be nonsuited on the ground that, there being a variance between the bought and sold notes, and the entry in the brokers' book not being admissible, no valid contract had been proved. The learned judge being of that opinion nonsuited the plaintiffs, giving them leave to move to enter a verdict if the court should be of a contrary opinion. Croivder and C. A. Wood now^ showed cause. JR. V. Hichards and Martin, contra. Parke, B. . . . I apprehend it has never been decided that the note entered by the broker in his book and signed b^' him, would not be good evidence of the contract so as to satisfy the Statute of Frauds, there being no other. The case of Hawes v. Forster underwent much discussion in the Court of King's Bench when I was a member of that court, and there was some difference of opinion amongst the judges ; but ultimately it went down to a new trial, in order to ascertain whether there was any usage or custom of trade which makes the broker's note evidence of the contract. In that case there was a signed entr}' in the book, which incorporated the terms of making the contract void in the event of the non-arrival of the goods within a certain time. The bought and sold notes which were delivered to the parties omitted that clause. Certainly it was the impression of part of the court that the contract entered in the book was the original contract, and that the bouglit and sold notes did not constitute the contract. The jury found that the bought and sold notes were evidence of the contract, but on the ground that those documents, having been delivered to each of the parties after signing the entry in the book, constituted evidence of a new contract made between the parties on the footing of those notes. That case may be perfectly correct ; but it does not decide that, if the bought and sold notes disagree, or there be a memorandum in the book made according to the intention of the parties, that memorandum signed by the broker would not be good evidence to satisfy the Statute of Frauds. . . . LoKi) AiuxGER, C. B. I have purposely avoided giving any opinion about the question of the bought and sold notes, but I desire it to be imderstood that I adliere to the opinion given by me, that when the bought and sold notes differ materially from each other there is no con- tract, unless it be shown that the broker's book was known to the parties. . . . liide ahsohae> ^ /. e., for a new trial, upon the ground tliat tliore was some evidence that the tal- low had heen delivered to the defendant and the statute satisfied in that mode. As that question turned entirely upon special facts, raising no point of law and possessing no general interest, so much of the case as relates to it has been omitted. 992 SIEVEWRIGHT V. ARCHIBALD. [CHAP. VI. SIEVEWRTGHT v. ARCHIBALD. In the Queen's Bench, June 17, 1851. [Reported in 17 Queen's Bench Reports, 103.] In this term (June 17tb), the court being divided in opinion, the learned judges delivered separate judgments. Erle, J. In this case it appeared by the evidence of the broker at the trial that he agreed with tlie defendant to sell to him 500 tons of Dunlop's iron ; that Dunlop's iron was Scotch ; that he delivered to the defendant a bought note in which the thing bought was named Scotch iron, and to the plaintiff a sold note in which the thing sold was named Dunlop's iron : and it further appeared that the defendant had repeat- edly admitted the existence of some contract by requesting the plaintiff to release him therefrom upon terms. The plaintiff had declared for not accepting Dunlop's iron ; but on the defendant producing the bought note so that it was in evidence, and objecting that there was no contract because the bought and sold notes varied, the plaintiff then contended that the defendant had ratified the contract expressed in the bought note sent to the defendant. The de- claration was then amended to agree with the bought note ; and the jury found their verdict for the plaintiff, and that the defendant had ratified the contract alleged in the amended declaration. I take this to be the substance of the evidence, as stated more fully in the judgment of the Lord Chief Justice. The defendant obtained a rule to set aside this ver- dict for the plaintiff, and enter it for the defendant, on two grounds : First, he contended that, in cases where a contract has been made by a broker and bought and sold notes have been delivered, they alone con- stitute the contract ; that all other evidence of the contract is excluded ; and that if they vary a contract is disproved ; and that the notes now in question did vary : and, secondly, he contended that, if evidence was in such cases admissible, there was no evidence here to go to the jury to prove the i-atification of the contract alleged in the amended declara- tion. But after considering the argument, it appears to me that he has failed to establish either ground. With respect to the first ground, I would observe that the question of the effect either of an entry in a broker's book signed by him, or of tlie acceptance of bought and sold notes which agree, is not touched b}' the present case. I assume that sufficient parol evidence of a contract in the terms of the bought note delivered to the defendant has been ten- dered, and that the point is, Whether such evidence is inadmissible be- cause a sold note was delivered to the plaintiff? in other words. Whether bought and sold notes, without other evidence of intention, are by pre- sumption of law a contract in writing? I think they are not. If bought and sold notes which agree are delivered and accepted without objection, such acceptance without objection is evidence for the jury of mutual SECT. VII.] SIEVEWRIGHT V. AECHIBALD. 993 assent to the terms of the notes ; bnt the assent is to be inferred by the jury from their acceptance rendering them unmerchantable, which would not be apparent on reasonable examination of the sample. PART 11. EFFECTS OF THE CONTRACT. Transfer of Property as between Seller and Buyer. 16. Where there is a contract for tlie sale of unascertained goods no property in the goods is transferred to the buyer unless and until the goods are ascertained. 17. _(1.) Where there is a contract for the sale of specific or ascertained goods the property in them is transferred to the buyer at such time as the parties to the con- tract intend it to be transferred. (2.) For the purpose of ascertaining the intention of the parties regard shall be had to the terms of the contract, the conduct of the parties, and the circumstances of the case. 18. Unless a different intention appears, the following are rules for ascertaining the intention of the parties as to the time at which the property in the goods is to pass to the buyer. Rule 1. Where there is an unconditional contract for the sale of specific goods, in a deliverable state, the property in the goods passes to the buyer when the con- tract is made, and it is immaterial whether the time of payment or the time of delivery, or both, be postponed. Rule 2. — Where there is a contract for the sale of specific goods and the seller is bound to do something to the goods, for the purpose of putting them into a deliverable state, the property does not pass until such thing be done, and the buyer has notice thereof. Rule 3. — Where there is a contract for the sale of specific goods in a deliverable state, but the seller is bound to weigh, measure, test, or do some other act or thing with reference to the goods for the purpose of ascertaining the price, the property does not pass until such act or thing be done, and the buyer has notice thereof. Rule 4. — When goods are delivered to the buyer on approval or " on sale or re- turn " or other similar terms the property therein passes to the buyer : — (a.) When he signifies his approval or acceptance to the seller or does any other act adopting the transaction : {b.) If he does not signify his approval or acceptance to the seller but retains the goods without giving notice of rejection, then, if a time has been fixed for the return of the goods, on the expiration of such time, and, if no time APPENDIX. 1077 has been fixed, on the expiration of a reasonable time. What is a reason- able time is a question of fact. Rule 5. — (1.) Where there is a contract for the sale of unascertained or future goods by description, and goods of that description and in a deliverable state are unconditionally appropriated to the contract, either by the seller with the assent of the buyer, or by the buyer with the assent of the seller, the property in the goods thereupon passes to the buyer. Such assent may be express or implied, and may be given either before or after the appropriation is made : (2.) Where, in pursuance of the contract, the seller delivers the goods to the buyer or to a carrier or other bailee or custodier (whether named by the buyer or not) for the purpose of transmission to the buyer, and does not reserve the right of disposal, he is deemed to have unconditionally appropriated the goods to the contract. 19. — (1.) Where there is a contract for the sale of specific goods or where goods are subsequently appropriated to the contract, the seller may, by the terms of tiie contract or appropriation, reserve the right of disposal of the goods until certain con- ditions are fulfilled. In such case, notwithstanding the delivery of the goods to the buyer, or to a carrier or other bailee or custodier for the purpose of transmission to the buyer, the property in the goods does not pass to the buyer until the conditions imposed by the seller are fulfilled. (2.) Where goods are shipped, and by the bill of lading the goods are deliverable to the order of the seller or his agent, the seller is prima facie deemed to reserve the right of disposal. (3.) Where the seller of goods draws on the buyer for the price, and transmits the bill of exchange and bill of lading to the buyer together to secure acceptance or pay- ment of the bill of exchange, the buyer is bound to return the bill of lading if he does not honor the bill of exchange, and if he wrongfully retains the bill of lading the property in the goods does not pass to him. 20. Unless otherwise agreed, the goods remain at the seller's risk until the prop- erty therein is transferred to the buyer, but wlien the property therein is transferred to the buyer, the goods are at the buyer'.s risk whether delivery has been made or not. Provided that where delivery has been delayed through the fault of either buvar or seller the goods are at the risk of the party in fault as regards any loss which might not have occurred but for such fault. Provided also that nothing in this section shall affect the duties or liabilities of either seller or buyer as a bailee or custodier of the goods of the other party. Transfer of Title. 21. — (1.) Sul)ject to the provisions of this Act, where goods are sold by a person who is not the owner thereof, and who does not sell them under the authority or with the consent of the owner, the buyer acquires no better title to the goods than the seller had, unless the owner of the goods is by his conduct precluded from denying the seller's authority to sell. (2.) Provided also that nothing in this Act shall affect — (a.) The provisions of the Factors Acts, or any enactment enabling the apparent owner of goods to dispose of them as if ho were the true owner thereof; (6.) The validity of any contract of sale under any special common law or statutory power of sale or under the order of a court of competent jurisdiction. 22 — (1.) Wliere goods are sold in market overt, according to the usage of the market, the buyer acfpiires a good title to the goods, provided ho buys them in good faith and without notice of any defect or want of title on the part of the seller. (2 ) Nothing in this section shall affect the law relating to the sale of horses. (3.) The provisions of this section do not apply to Scotland 23. When the seller of goods has a voidable title thereto, but his title has not been 1078 APPENDIX. avoided at the time of the sale, the buyer acquires a good title to the goods, provided he buys them iu good faith and witliout notice of the seller's defect of title. 24, (1.) Where goods have been stolen and the offender is prosecuted to convic- tion, the property in the goods so stolen revests in the person who was the owner of the goods, or his personal representative, notwithstanding any intermediate dealing with them, whether by sale iu market overt or otherwise. (2.) Notwithstanding any enactment to the coutrary, where goods have been ob- tained by fraud or other wrongful means not amounting to larceny, the property in such goods shall not revest in the person who was the owner of the goods, or his per- sonal representative, by reason only of the conviction of the offender. (3.) The provisions of this section do not apply to Scotland. 25. — (1.) Where a person having sold goods continues or is in possession of the goods, or of the documents of title to the goods, the delivery or transfer by that person, or by a mercantile agent acting for him, of the goods or documents of title under any sale, pledge, or other disposition thereof, to any person receiving tlie same in good faith and without notice of the previous sale, shall have the same effect as if the person making tiie delivery or transfer were expressly authorized by the owner of the goods to make the same. (2.) Where a person having bought or agreed to buy goods obtains, with the con- sent of the seller, possession of the goods or the documents of title to the goods, the delivery or transfer by tliat person, or by a mercantile agent acting for him, of the goods "or documents of title, under any sale, pledge, or other disposition thereof, to any person receiving the same iu good faith and without notice of any lien or other right of the original seller iu respect of the goods, shall have the same effect as if the person making the delivery or transfer were a mercantile agent in possession of the goods or documents of title with the consent of the owner. (3.) In this section the term "mercantile agent" has the same meaning as in the Factors Acts. 26 — (1.) A writ oi fieri facias ox other writ of execution against goods shall bind the property in the goods of the execution debtor as from the time when the writ is delivered to the sheriff to be executed ; and, for the better manifestation of such time, it shall be the' duty of the sheriff, without fee, upon the receipt of any such writ to indorse upon the back thereof the hour, day, month, and year when he received the same. Provided that no such writ shall prejudice the title to such goods acquired by any person in good faith and for valuable consideration, unless such person had at the time when he acquired his title notice that such writ or any other writ by virtue of which the goods of the execution debtor might be seized or attached had been de- livered to and remained unexecuted in the hands of the sheriff. (2.) In this section the term " sheriff " includes any officer charged with the enforce- ment of a writ of execution. (3.) The provisions of this section do not apply to Scotland. PART III. PERFORMANCE OF THE CONTRACT. 27. It is the duty of the seller to deliver the goods, and of the buyer to accept and pay for them, in accordance with the terms of the contract of sale. 28. Unless otherwise agreed, delivery of the goods and payment of the price are eoncurrent conditions, that is to say, the seUer must be ready and wiUiug to give APPENDIX. 1079 possession of the goods to the buyer in exchange for the price, and the buyer must be ready and willing to pay the price in exchange for possession of the goods. 29. — (1.) Whether it is for the buyer to take possession of the goods or for the seller to send them to the buyer is a question depending in each case on the contract, express or implied, between the parties. Apart from any such contract, express or implied, the place of delivery is the .seller's place of business, if he have one, and if not, his residence ; Provided that, if the contract be for the sale of specific goods, which to the knowledge of the parties when the contract is made are in some other place, then that place is the place of delivery. (2.) "Where under the contract of sale the seller is bound to send the goods to the buyer, but no time for sending them is fixed, the seller is bound to send them within a reasonable time. (3.) Where the goods at the time of sale are in the possession of a third person, there is no delivery by seller to buyer unless and until such third person acknowledges to the buyer that he holds the goods on his behalf ; provided that nothing in this sec- tion shall affect the operation of the issue or transfer of any document of title to goods. (4.) Demand or tender of delivery may be treated as ineffectual unless made at a reasonable hour. What is a reasonable hour is a question of fact. (5.) Unless otherwise agreed, the expenses of and incidental to putting the goods into a deliverable state must be borne by the seller. 30. — (1.) Where the seller delivers to the buyer a quantity of goods less than lie contracted to sell, the buyer may reject them, but if the buyer accepts the goods so delivered he must pay for them at the contract rate. (2.) Where the seller delivers to the buyer a quantity of goods larger than he con- tracted to sell, the buyer may accept the goods included in the contract and reject the rest, or he may reject the whole If the buyer accepts the whole of the goods so de- livered he must pay for them at the contract rate. (3.) Where the seller delivers to the buyer the goods he contracted to sell mixed with goods of a different description not included in the contract, the buyer may accept the goods which are in accordance with tlie contract and reject the rest, or lie may reject the whole. (4.) The provisions of this section are subject to any usage of trade, special agree- ment, or course of dealing between the parties. 31. — (1.) Unless otherwise agreed, the buyer of goods is not bound to accept de- livery thereof by instalments. (2.) Where there is a contract for the sale of goods to bo delivered by stated instalments, which are to be separately paid for, and the seller makes defective de- liveries in respect of one or more instalments, or the buyer neglects or refuses to take delivery of or pay for one or more instalments, it is a question in each ca.se depending on the terms of the contract and the circumstances of the ca.se, whether the breacii of contract is a repudiation of the whole contract or whether it is a severable breach giving rise to a claim for compensation but not to a right to treat the whole contract as repudiated. 32. — (I.) Where, in pursuance of a contract of sale, the seller is authorised or required to send the goods to the buyer, delivery of the goods to a carrier, whether named by the buyer or not, for the purpose of transmission to the buyer is prima facie deemed to be a delivery of the goods to the buyer. (2.) Unless otherwise authorised by the buyer, the seller must make such contract with the carrier on behalf of the buyer as may be roasonai)lo having regard to the nature of tlie goods and the other circumstances of the case. If the seller omit so to do, and the goods are lost or damaged in course of transit, the buyer may decline to treat the delivery to the carrier as a delivery to himself, or may hold the seller respoa- •ible in damages. 1080 APPENDIX. (3.) Unless otherwise agreed, where goods are sent by the seller to the buyer 'bj a route involving sea transit, under circumstanced in which it is usual to insure, the seller must give such notice to the buyer as may enable him to insure them during their sea transit, and, if the seller fails to do so, the goods shall be deemed to be at his risk during such sea transit. 33. Where the seller of goods agrees to deliver them at his own risk at a place other than that where they are when sold, the buyer must, nevertheless, unless other- wise agreed, take any risk of deterioration in the goods necessarily incident to the course of transit. 34. — (1.) Where goods are delivered to the buyer, which he has not previously examined, he is not deemed to have accepted them unless and until he has had a reasonable opportunity of examining them for the purpose of ascertaining whether they are in conformity with the contract. (2.) Unless otherwise agreed, when the seller tenders delivery of goods to the buyer, he is bound, on request, to afford the buyer a reasonable opportunity of exam- ining the goods for the purpose of ascertaining whether they are in conformity with the contract. 35. The buyer is deemed to have accepted the goods when he intimates to the seller that he has accepted them, or when the goods have been delivered to him, and he does any act in relation to them which is inconsistent with the ownership of the seller, or when after the lapse of a reasonable time, he retains the goods without inti- mating to the seller that he has rejected them. 36 Unless otherwise agreed, where goods are delivered to the buyer, and he re- fuses to accept tliem, having the right so to do, he is not bound to return them to the seller, but it is sufficient if he intimates to the seller that he refuses to accept them. 37. When the seller is ready and willing to deliver the goods, and requests the huver to take delivery, and the buyer does not within a reasonable time after such request take delivery of the goods, he is liable to the seller for any loss occasioned by his neglect or refusal to take delivery, and also for a reasonable charge for the care and custody of the goods Provided that nothing in this section shall affect the rights of the seller where the neglect or refusal of the buyer to take delivery amounts to a repudiation of the contract. PART ly. RIGHTS OF UNPAID SELLER AGAINST THE GOODS. 33 _ (1) The seller of goods is deemed to be an " unpaid seller " within the mean- ing of this Act — ('( ) When the whole of the price has not been paid or tendered ; (6.) When a bill of exchange or other negotiable instrument has been received as conditional payment, and the condition on which it was received has not been fulfilled by reason of the dishonor of the instrument or otherwise. (2.) In this part of this Act the term "seller" includes any person who is in the position of a seller, as, for instance, an agent of the seller to whom the bill oi lading has been indorsed, or a consignor or agent who has himself paid, or is directly respon- sitile for, the price. 39. — (1.) Subject to the provisions of this Act, and of any statute in that behalf, notwithstanding that the property in the goods may have passed to the buyer, the unpaid seller of goods, as such, has by implication of law — APPENDIX. 1081 (a.) A lien on the goods or right to retain them for the price while he is iu posses- sion of them ; (6.) In case of the insolvency of the buyer, a right of stopping the goods in transitu after he has parted with the possession of them; (c.) A riglit of re-sale as limited by this Act. (2.) Where the property iu goods has not passed to the buyer, the unpaid seller has, iu addition to his other remedies, a right of withholding delivery similar to and co-extensive with his rights of lien and stoppage i'n transitu where the property has passed to the buyer. 40. In Scotlaud a seller of goods may attach the same while in his own hands or possession by arrestment or poinding ; and such arrestment or poinding shall have tlie same operation and effect iu a competition or otherwise as an arrestment or poinding by a third party. Unpaid Seller's Lien. 41. — (1.) Subject to the provisions of this Act, the unpaid seller of goods who is in possession of them is entitled to retain possession of them until payment or tender of the price in the following cases, namely : — (a.) Where the goods have been sold without any stipulation as to credit , (6.) Where the goods have been sold on credit, but the terra of credit has expired; (c.) Where the buyer becomes insolvent. (2.) The seller may exercise his right of lien notwithstanding that he is iu posses- sion of the goods as agent or bailee or custodier for the buyer. 42. Where an unpaid seller has made part delivery of tlie goods, he may exercise his right of lien or retention on the remainder, unless such part delivery has been made under such circumstances as to show an agreement to waive the lien or right of retention. 43. — (1.) The unpaid seller of goods loses his lien or right of retention thereon — (a.) When he delivers the goods to a carrier or other bailee or custodier for tiie purpo.se of transmission to the buyer without reserving the right of disposal of the goods ; (6.) When the buyer or his agent lawfully obtains possession of the goods ; (c.) By waiver thereof. (2.) The unpaid seller of goods, having a lien or right of retention thereon, does not lose his lien or right of retention by reason only that he has obtained judgmeut or decree for the price of the goods. Stoppage in TiiANsixn. 44. Subject to the provisions of this Act, when the buyer of goods becomes insol- vent, the unpaid seller who has parted with the posses.siou of the goods has the right of stopping them in transitu, that is to say, lie may resume possession of the goods as long as they are in course of transit, and may retain tlicm until payment or tender of the price. 45. — (1.) Goods are doomed to be in course of transit from the time when tlioy are delivered to a carrier by land or water, or other bailee or custodier for the pur pose of transmission to the buyer, until the buyer, or his agent in that belialf, takes delivery of tJiem from such carrier or other bailee or cn.stodier. (2.) If the buyer or liis agent in tliat liehalf obt.ains delivery of the goods befora their arrival at the appointeil destination, tlie transit is at an end. (3.) If, after the arrival of the goods at the appointed destination, tho carrier or other bailee or custoilier acknowledges to tho buyer, or his agent, that he holds tho goods on his l)ehalf and continues in po.sscssion of them as bailee or custodier for tho buyer, or his agent, the transit is at an end, and it is immaterial that a further desti* nation for tho goods may have been indicated by the buyer. 1082 APPENDIX. (4.) If the goods are rejected by the buyer, and the carrier or other bailee or cus- todier coutinues in possession of them, tlie transit is not deemed to be at an end, even if tiie seller lias refused to receive them back. (5.) When goods are delivered to a ship chartered by the buyer it is a question depending on the circumstances of the particular case, whether they are in the possea- sion of the master as a carrier, or as agent to the buyer. (6.) Where the carrier or other bailee or custodier wrongfully refuses to deliver the goods to the buyer, or his agent in that behalf, the transit is deemed to be at an end. (7.) Where part delivery of the goods has been made to the buyer, or his agent in that behalf, the remainder of the goods may be stopped in transitu, unless such part delivery has been made under such circumstances as to show an agreement to give np possession of the whole of the goods. 46. — (1.) The unpaid seller may exercise his right of stoppage in transitu either by taking actual possession of the goods, or by giving notice of his claim to the carrier or other bailee or custodier in whose possession the goods are. Such notice may be given either to the person in actual possession of the goods or to his principal. In the latter case the notice, to be effectual, must be given at such time and under such cir- cumstances that the principal, by the exercise of reasonable diligence, may communi- cate it to his servant or agent in time to prevent a delivery to the buyer. (2.) When notice of stoppage in transitu is given by the seller to the carrier, or other bailee or custodier in possession of the goods, he must redeliver the goods to, or according to the directions of, the seller. The expenses of such redelivery must be borne by the seller. Re-sale by Buyer or Seller. 47. Subject to the provisions of this Act, the unpaid seller's right of lien or reten- tion or stoppage in transitu is not affected by any sale, or other disposition of the goods which the buyer may have made, unless the seller has assented thereto. Provided that where a document of title to goods has been lawfully transferred to any person as buyer or owner of the goods, and that person transfers the document to a person who takes the document in good faith and for valuable consideration, then, if such last-mentioned transfer was by way of sale tlie unpaid seller's right of hen or retention or stoppage in transitu is defeated, and if suc'h last-mentioned transfer was by way of pledge or other disposition for value, the unpaid seller's right of lien or retention or stoppage in transitu can only be exercised subject to the rights of the transferee. 48. — (1.) Subject to the provisions of this section, a contract of sale is not re- scinded by the mere exercise by an unpaid seller of his right of lien or retention or stoppage in transitu. (2.) Where an unpaid seller who has exercised his right of lien or retention or stoppage in transitu resells the goods, the buyer acquires a good title thereto as against the original buyer. (3.) \^'^here the goods are of a perishable nature, or where the unpaid seller gives notice to the buyer of his intention to resell, and the buyer does not within a reason- able time pay or tender the price, the unpaid seller may resell the goods and recover from the orijrinal buyer damages for any loss occasioned by his breach of contract. (4.) AVhere the seller expressly reserves a right of resale in case the buyer should make default, and on the buyer making default, resells the goods, the original con- tract of sale is thereby rescinded, but without prejudice to any claim the seller may have for damages. APPENDIX. 1083 PART V. ACTIONS FOR BREACH OF THE CONTRACT. Remedies of the Seller. 49. — (1.) Where, under a contract of sale, the property in the goods has passed to the buyer, and the buyer wrongfully neglects or refuses to pay for the goods according to the terms of the contract, the seller may maintain an action against him for the price of the goods. (2.) Where, under a contract of sale, the price is payable on a day certain irrespec- tive of delivery, and the buyer wrongfully neglects or refuses to pay such price, the seller may maintain an action for the price, although the property in the goods has not passed, and the goods have not been appropriated to the contract. (3.) Nothing in this section shall prejudice the right of the seller in Scotland to recover interest on the price from the date of tender of the goods, or from the date on which the price was payable, as the case may be. 50. — (1.) Where the buyer wrongfully neglects or refuses to accept and pay for the goods, the seller may maintain an action against him for damages for non- acceptance. (2.) The measure of damages is the estimated loss directly and naturally resulting, in the ordinary course of events, from the buyer's breach of contract. (3.) Where there is an available market for the goods in question the measure of damages '\a prima facie to be ascertained by the difference between the contract price and the market or current price at the time or times when the goods ought to have been accepted, or, if no time was fixed for acceptance, then at the time of the refusal to accept. Remedies of the Buyer. 51. — (1.) Where the seller wrongfully neglects or refuses to deliver the goods to the buyer, the buyer may maintain an action against the seller for damages for non-delivery. (2.) The measure of damages is the estimated loss directly and naturally resulting, in the ordinary course of events, from the seller's breach of contract. (3.) Where there is an available market for the good.s in question the measure of damaj^es in jn-ima facie to be a.scertained by the difference between the contract ])rice and the market or current price of the goods at the time or times when they ought to have been delivered, or, if no time was fixed, then at the time of the refusal to deliver. 52. In any action for breach of contract to deliver specific or a.scertained goods the court may, if it thinks fit, on the application of the plaintiff, by its judgment or